Gustavo Adolfo Garcia Vela

Mailed: June 29, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Gustavo Adolfo Garcia Vela
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Serial No. 98841270
————
Roman Campos of Muncy, Geissler, Olds & Lowe, PC,
for Gustavo Adolfo Garcia Vela.
Elkin Hospers, Trademark Examining Attorney, Law Office 113,
Myriah Habeeb, Managing Attorney.
————
Before Larkin, Lebow, and Lavache,
Administrative Trademark Judges.
Opinion by Lavache, Administrative Trademark Judge:
Applicant, Gustavo Adolfo Garcia Vela, seeks registration on the Principal
Register of the composite mark displayed below, for “Restaurant services featuring
poke bowls; takeaway and home delivery restaurant services featuring poke bowls;
all excluding sushi restaurant services” in International Class 43.1
1 Application Serial No. 98841270, filed November 7, 2024, under Trademark Act Section
44(e), 15 U.S.C. § 1126(e), based on Applicant’s ownership of foreign Registration No.
2259588, issued by Mexico on June 10, 2021. The application includes a disclaimer of the
exclusive right to use POKE apart from the mark as shown, and a statement indicating that
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 98841270
2
The Trademark Examining Attorney refused registration of Applicant’s mark on
the ground of likelihood of confusion under Trademark Act Section 2(d),
15 U.S.C. § 1052(d), citing the stylized mark2 and composite mark3 displayed below,
both of which are registered on the Principal Register to the same owner for “sushi”
in International Class 30 and “sushi restaurant services” in International Class 43.
the English translation of GENKI is “healthy,” “energetic,” or “lively.” Applicant has provided
the following mark description and color claim:
The mark consists of a stylized circular design above the wording “GENKI
POKE” in a large, modern, lowercase font, with the word “GENKI” appearing
in thin lettering and “POKE” in bold, uppercase lettering. Below “GENKI
POKE” is the word “HEALTHYLICIOUS” in uppercase, smaller, thin font. The
circular design contains a stylized representation of a poke bowl with two
chopsticks angled diagonally toward the bowl. Inside the bowl, abstract shapes
resembling food ingredients are depicted, including small dots, leaf-like
shapes, and a curved line forming part of the bowl outline. The design and
wording are all in green.
The color(s) green, black is/are claimed as a feature of the mark.
2 Registration No. 3487390, issued on August 19, 2008; renewed. The registration includes a
disclaimer of the exclusive right to use SUSHI apart from the mark as shown, and a
statement indicating that the English translation of GENKI is “vigor, energy, and vitality.”
Color is not claimed as a feature of the mark.
3 Registration No. 2604363, issued on August 6, 2002; renewed. The registration includes a
disclaimer of the exclusive right to use SUSHI apart from the mark as shown, and a
statement indicating that the English translation of GENKI is “courage; energy.” Color is not
claimed as a feature of the mark.

Serial No. 98841270
3
After the Examining Attorney issued a final refusal, Applicant filed this appeal
and requested reconsideration, which the Examining Attorney denied. The appeal
then resumed and has been fully briefed.4 For the reasons explained below, we affirm
the refusal.
I. Likelihood of Confusion
Trademark Act Section 2(d), in relevant part, prohibits registration of a mark
that “so resembles a mark registered in the Patent and Trademark Office . . . as to be
likely, when used on or in connection with the goods [or services] of the applicant, to
cause confusion.” 15 U.S.C. § 1052(d). To determine whether confusion is likely, we
analyze all probative evidence relevant to the factors set out in In re E. I. du Pont de
Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). See also In re Majestic
Distilling Co., 315 F.3d 1311, 1315 (Fed. Cir. 2003).
In every Section 2(d) case, two key DuPont factors are the similarity or
dissimilarity of the marks and respective goods or services because the “fundamental
inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods [or services] and differences in the marks.” Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976). Here, we
have considered each DuPont factor that is relevant and for which there is evidence
4 See Applicant’s Appeal Brief, 6 TTABVUE; Examining Attorney’s Brief, 8 TTABVUE;
Applicant’s Appeal Brief, 9 TTABVUE.
The TTABVUE and Trademark Status and Document Retrieval (TSDR) citations in this
opinion refer respectively to entries in the Board’s electronic docket and to the electronic
application file. For TTABVUE citations, the number preceding the TTABVUE designation
is the docket entry number and any numbers following indicate the relevant page numbers
within the docket entry.

Serial No. 98841270
4
and argument of record. See In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir.
2019).
Varying weight may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed.
Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 1205 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination.”). Ultimately, however, “each case must be decided on its own facts
and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d
1197, 1199 (CCPA 1973).
A. Focus on Registration No. 3487390
Although the Examining Attorney cited two registrations in support of the Section
2(d) refusal, we need not consider both in our analysis. The services listed in each
cited registration are the same and, of the two registered marks, the stylized mark
in Registration No. 3487390 is more similar to Applicant’s mark.
Therefore, we will focus our analysis on (the “Cited Mark”) and the
registration’s identified “sushi restaurant services” in International Class 43. A
conclusion that there is a likelihood of confusion as to suffices to affirm
the Section 2(d) refusal. And, if we were to conclude that there is no likelihood of
confusion as to , then we would reach the same conclusion as to other
cited mark. See In re Morinaga Nyugyo K.K., No. 86338392, 2016 TTAB LEXIS 448,
at *7-8; In re Max Cap. Grp., No. 77186166, 2010 TTAB LEXIS 1, at *4-5.

Serial No. 98841270
5
B. Comparison of the Marks
We begin our analysis with the first DuPont factor, which focuses on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation,
and commercial impression. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (quoting DuPont, 476
F.2d at 1361). Similarity as to any one of these elements may be sufficient to support
a finding that the marks are confusingly similar. See Krim-Ko Corp. v. Coca-Cola Co.,
390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if the similarity in either form,
spelling or sound alone is likely to cause confusion.”); In re Inn at St. John’s, LLC,
No. 87075988, 2018 TTAB LEXIS 170, at *13, aff’d, 777 Fed. Appx. 516 (Fed. Cir.
2019).
The marks at issue here are set forth below.
While the marks appear together here, “[t]he proper test is not a side-by-side
comparison of the marks, but instead whether the marks are sufficiently similar in
terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.” In re i.am.symbolic, llc,
866 F.3d 1315, 1324 (Fed. Cir. 2017) (quoting Coach Servs. v. Triumph Learning LLC,
668 F.3d 1356, 1368 (Fed. Cir. 2012). “The focus is on the recollection of the average
Applicant’s Mark Cited Mark

Serial No. 98841270
6
purchaser, who normally retains a general rather than a specific impression of
trademarks.” In re Box Sols. Corp., No. 76267086, 2006 TTAB LEXIS 176, at *14.
All elements of the respective marks must be considered. See In re Viterra, 671
F.3d 1358, 1362 (Fed. Cir. 2012) (“[M]arks must be viewed ‘in their entireties,’ and it
is improper to dissect a mark . . ., including when a mark contains both words and a
design.”); In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) (“[M]arks must
be compared in their entireties . . . .”). However, “there is nothing improper in stating
that, for rational reasons, more or less weight has been given to a particular feature
of a mark, provided the ultimate conclusion rests on consideration of the marks in
their entireties.” In re Detroit Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018)
(quoting Nat’l Data, 753 F.2d at 1058).
Turning to the marks here, the Examining Attorney points out that “the structure
of the applied-for and registered mark[] is highly similar in that each mark begins
with the word GENKI, followed by a description of the food the applicant and
registrant provide (POKE and SUSHI, respectively).”5 Applicant counters that its
mark has additional elements, including a stylized representation of a bowl and the
term HEALTHYLICIOUS, which serve to distinguish the respective marks.6
The Examining Attorney’s focus on the shared term GENKI is appropriate in this
case, as it is likely that consumers will also focus on this lead element. Applicant
5 Examining Attorney’s Brief, 8 TTABVUE 4.
6 See Applicant’s Appeal Brief, 6 TTABVUE 15-19.

Serial No. 98841270
7
translates this foreign term as “healthy,” “energetic,” or “lively,”7 while the cited
registration indicates the term translates to “vigor, energy, and vitality.” Whichever
one of these similar and overlapping translations is applied, the term GENKI, in both
marks, is at least suggestive as applied to the respective services, while the terms
POKE and SUSHI are descriptive, if not generic, terms for the identified services and
thus are disclaimed. Therefore, as to the Cited Mark, we find that GENKI, the first
word and sole distinctive portion of the mark, is the dominant element. See In re
Hughes Furniture Indus., No. 85627379, 2015 TTAB LEXIS 65, at *16 (“Disclaimed
matter generally will not constitute the dominant part of a mark.”); Presto Prods.,
Inc. v. Nice-Pak Prods. Inc., No. 91074797, 1988 TTAB LEXIS 60, at *8 (“[I]t is often
the first part of a mark which is most likely to be impressed upon the mind of a
purchaser and remembered.”).
We find that GENKI is also the dominant element in Applicant’s mark, not only
because, as in the Cited Mark, it is the first literal element, but also because it
appears in relatively larger font above the other nondescriptive wording in the mark,
HEALTHYLICIOUS, and is likely to be used by consumers to call for the services.
See, e.g., Viterra, 671 F.3d at 1362 (“In the case of a composite mark containing both
words and a design, ‘the verbal portion of the mark is the one most likely to indicate
the origin of the goods to which it is affixed.’”) (quoting CBS, Inc. v. Morrow, 708 F.2d
1579, 1581-82 (Fed. Cir. 1983)); Palm Bay Imps., 396 F.3d at 1371 (finding VEUVE
was a prominent feature of the relevant mark because it was the first word in the
7 November 7, 2024 Application at TSDR 1 (translation statement).

Serial No. 98841270
8
mark); In re Coors Brewing Co., 343 F.3d 1340, 1344 (Fed. Cir. 2003) (agreeing with
the Board that wording appearing in smaller font at the bottom of the mark was less
significant than other more prominent wording); L.C. Licensing, Inc. v. Berman, No.
91162330, 2008 TTAB LEXIS 756, at *9 (“[I]t is well settled that if a mark comprises
both a word and a design, then the word is normally accorded greater weight because
it would be used by purchasers to request the goods.”); In re Aquitaine Wine USA,
LLC, No. 86928469, 2018 TTAB LEXIS 108, at *6-7 (finding a term to be the
dominant element of a mark because “it comprise[d] the largest literal portion of the
mark in terms of size, position, and emphasis”). In view of the common dominant
element of the marks, GENKI, and the marks similar structure, we find the marks
similar in terms of sound and appearance.
The shared dominant word GENKI also gives the respective marks a similar
connotation. As already mentioned, Applicant and Registrant have translated
GENKI similarly as connoting energy and liveliness, and there is no evidence, or
reason to believe, that the slight differences in the nature of the respective identified
services (i.e., serving poke bowls vs. serving sushi) would alter the connotation or
commercial impression of the term. Thus, we find that, whatever connotation the
relevant consumers are likely to attribute to GENKI POKE in Applicant’s mark could
also be attributed to GENKI SUSHI in the Cited Mark, regardless of whether GENKI
is translated or taken as it is. See Morinaga Nyugyo, 2016 TTAB LEXIS 448, at *27-
28 (“[W]hile the marks are not identical, they are similar enough that their use on
identical or closely related goods is likely to cause confusion.”); see also, e.g., In re

Serial No. 98841270
9
Embiid, No. 88202890, 2021 TTAB LEXIS 168, at *28 (“[T]here is no evidence here,
or other reason to find, that the mark TRUST THE PROCESS has one meaning when
used with shoes, and a second and different meaning when used with shirts and
sweatshirts, based on the nature of the respective goods.”). Overall, the similarities
in sound, appearance, and connotation of the two marks result in a similar
commercial impression.
Indeed, in view of this similar overall commercial impression, consumers could
reasonably assume that Applicant’s services sold under its mark are from the same
source as the services sold under the Cited Mark with which they are acquainted or
familiar, and that Applicant’s mark is merely a variation of, or derivative of, the Cited
Mark, or vice versa. That is, consumers could reasonably assume that GENKI POKE
identifies a poke-focused restaurant from the same provider as the GENKI SUSHI
restaurant, or conversely that GENKI SUSHI identifies a sushi-focused restaurant
from the same provider as the GENKI POKE restaurant.8 See, e.g., In re Comexa
Ltda., No. 75396043, 2001 TTAB LEXIS 274 (applicant’s use of term AMAZON and
parrot design for chili sauce and pepper sauce is likely to cause confusion with
registrant’s AMAZON mark for restaurant services); SMS, Inc. v. Byn-Mar Inc., No.
91068062, 1985 TTAB LEXIS 32, at *4 (finding applicant’s marks ALSO ANDREA
and ANDREA SPORT were “likely to evoke an association by consumers with
8 We reject Applicant’s argument that term POKE distinguishes its mark from the Cited
Mark because it “signals to consumers that the business occupies a distinct culinary niche.”
Applicant’s Appeal Brief, 6 TTABVUE 17. The record shows that poke and sushi both involve
raw seafood and, here, the term POKE merely indicates a particular type of raw seafood
offered by Applicant’s restaurant services, not the source of those services.

Serial No. 98841270
10
opposer’s preexisting mark [ANDREA SIMONE] for its established line of clothing”);
Gastown Inc. v. Gas City, Ltd., 1975 TTAB LEXIS 95, at *10-11 (“The similarity of
the marks [GASTOWN and GAS CITY] . . . is a sufficient basis upon which to
predicate a holding of likelihood of confusion because the average purchaser normally
retains but a general or overall rather than a specific recollection of the many
trademarks that he encounters in his daily excursions into the different marketplaces
of our society.”) (no number in original).
Applicant argues that the other elements in its mark are sufficient to avoid
confusion.9 We disagree. The design element in Applicant’s mark, which the mark
description describes as a “stylized representation of a poke bowl,” is highly
suggestive of the food items featured in Applicant’s restaurant services and thus
merely reinforces the descriptive and disclaimed term POKE in the mark.
As to the term HEALTHYLICIOUS, it is displayed in significantly smaller font
below the wording GENKI POKE and is described by Applicant as a portmanteau of
“healthy” and “delicious.”10 Thus, while we agree with Applicant that the term is more
than a mere “descriptive flourish,”11 its placement and size give it less prominence in
the mark, and it would likely be perceived as suggesting the qualities of the food
provided by Applicant’s restaurant or echoing one of the meanings of GENKI (i.e.,
“healthy”). It does little, if anything, to differentiate source or mitigate potential
9 See id. at 15-19; Applicant’s Reply Brief, 9 TTABVUE 8-9.
10 See Applicant’s Appeal Brief, 6 TTABVUE 18.
11 Id. at 19.

Serial No. 98841270
11
confusion. See, e.g., In re Charger Ventures, 64 F.4th 1375, 1382 (Fed. Cir. 2023) (“[A]n
additional word or component may technically differentiate a mark but do little to
alleviate confusion.”); Max Cap. Grp., 2010 TTAB LEXIS 1, at *17 (finding that the
addition of a design element to a word that is identical to another mark did not reduce
likelihood of confusion, especially where the respective services were legally
identical). Likewise, the stylization of the wording in the respective marks, while
different, is not so distinctive as to differentiate the marks for source-indicating
purposes.
Lastly, we reject Applicant’s argument that giving these other elements less
weight in the likelihood-of-confusion analysis is “contrary to the well-settled Anti-
Dissection Rule.”12 Again, “there is nothing improper in stating that, for rational
reasons, more or less weight has been given to a particular feature of a mark, provided
the ultimate conclusion rests on consideration of the marks in their entireties.”
Detroit Athletic, 903 F.3d at 1305.
In sum, we have considered both marks in their entireties and we find that
Applicant’s mark is similar to the Cited Mark in terms of sound, appearance,
connotation, and overall commercial impression.13 The first DuPont factor therefore
weighs in favor of a conclusion that confusion as to source is likely.
12 Id. at 18.
13 In its briefs, Applicant cites third-party Application Serial No. 97083010 for the standard-
character mark GENKI SAN RESTAURANT, which Applicant made of record during
prosecution, for the proposition that “[t]he USPTO’s acceptance of that registration, despite
the shared use of ‘GENKI,’ confirms that additional source-identifying elements can and do
distinguish similar marks.” Id. at 20; see also Applicant’s Reply Brief, 9 TTABVUE 10-11.
However, this application, which has since abandoned, is not evidence of anything except

Serial No. 98841270
12
C. Comparison of the Services
We now turn to the second DuPont factor, which concerns the similarity or
dissimilarity and nature of the respective services, i.e., the relatedness of the services.
DuPont, 476 F.2d at 1361. In assessing relatedness, we must consider the services as
they are identified in Applicant’s application and the cited registration. See Stone
Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014);
Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990).
Registration may be refused as to an entire class of services in an application if
the applicant’s mark as used in connection with any of its identified services in that
class is likely to cause confusion with the registrant’s mark for any of the services
listed in the cited registration. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed.
Cir. 1983) (holding that a single good from among several may sustain a finding of
likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335,
1336 (CCPA 1981) (indicating that likelihood of confusion must be found if there is
likely to be confusion with respect to any item that comes within the identification of
goods in the application).
Here, Applicant’s services are identified as “Restaurant services featuring poke
bowls; takeaway and home delivery restaurant services featuring poke bowls; all
that it was filed on a certain date. See Nike, Inc. v. WNBA Enters., LLC, No. 91160755, 2007
TTAB LEXIS 39, at *38. Also, it is well settled that the Board is not bound by the prior
decisions of examining attorneys involving different marks and different application records.
See In re Nett Designs Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001).

Serial No. 98841270
13
excluding sushi restaurant services,” in International Class 43. The cited registration
lists, in relevant part, “sushi restaurant services,” in International Class 43.14
The Examining Attorney contends that the “record clearly establishes that poke
and sushi restaurant services are related.”15 In support, the Examining Attorney
provides the following evidence from various third-party restaurant websites showing
that “the same entity commonly provides both poke and sushi restaurant[] services
and markets the services under the same mark”:16
• The menu of Poke Fresh (listed on order.mealkeyway.com) offers
both “Signature Poke” dishes and various types of sushi rolls.17
• Poke Sushi (pokesushi.net) claims to “unite fresh poke bowls and
exquisite sushi rolls” “for a culinary journey that celebrates the best
of both worlds.”18
• Sushi Express & Poke Bowl Restaurant (sushiexpressaustin.com)
offers both “authentic and delicious tasting Sushi and Poke Bowl in
Austin, TX,” and features a menu listing options such as “Make Your
Own Healthy Poke Bowl,” “Signature Express Poke Combo,” and
various types of sushi rolls.19
• Poke & Roll (www.pokeandrollnyc.com) offers various types of sushi
rolls, as well as various “Signature Poké Bowls,” a “Build Your Own
Poké Bowl,” a “Poké Taco,” and a “Poké Burrito.”20
14 The Examining Attorney’s refusal focuses on these services, not Registrant’s identified
“sushi” in International Class 30. We will do the same, because, as noted above, a finding of
likelihood of confusion as to these services alone would suffice to affirm the refusal.
15 Examining Attorney’s Brief, 8 TTABVUE 9.
16 Id. at 9-10.
17 October 27, 2025 Denial of Request for Reconsideration at TSDR 5, 7.
18 Id. at 10.
19 Id. at 12-17.
20 Id. at 18-40.

Serial No. 98841270
14
• Hilo Poké & Sushi (hilopokesushi.com) offers signature poké bowls,
poké burritos, and poké salads, as well as various types of sushi
rolls.21
• Poké Sushi Roll (pokesushiroll.com) offers sushi, sushi rolls, and
signature poke bowls, salads, and burritos.22
• Japanese Poke and Sushi Restaurant (www.japanesepokeand-
sushirestaurant.com) offers sushi appetizers, including sushi rolls,
as well as various types of poke bowls.23
• Sushi and Poke (www.sushiandpoke.com) offers sushi bar appetizers
and various types of sushi rolls, as well as a variety of poke bowls.24
• The menu of Oshi Poke Bowl and Sushi (listed on
huntsville.grubsouth.com) includes various types poke bowls and
sushi rolls.25
• The menu of Poke Star (listed on order.mealkeyway.com) includes
various types of poke bowls and sushi rolls.26
We agree with the Examining Attorney that this evidence shows that consumers
are accustomed to encountering the respective services being offered together by the
same source under the same mark. See, e.g., Naterra Int’l, Inc. v. Bensalem, 92 F.4th
1113, 1117 (Fed. Cir. 2024) (“[T]estimony that third-party companies sell both types
of goods [or services] is pertinent to the relatedness of the goods [or services].”); Recot,
Inc. v. Becton, 214 F.3d 1322, 1328-29 (Fed. Cir. 2000) (finding the Board “erred when
it refused to consider the lay evidence that several large companies produce and sell
21 Id. at 42-47.
22 Id. at 49-61.
23 Id. at 62-70.
24 Id. at 71-82.
25 Id. at 84-91.
26 Id. at 92-93.

Serial No. 98841270
15
both pet and human food in deciding whether a consumer would reasonably believe
that . . . dog treats originated from the same source as . . . human snacks”).
Specifically, the evidence shows that it is not uncommon for consumers to encounter
restaurants that offer both poke bowls and sushi dishes. See Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002) (“[E]vidence, such as
whether a single company sells the goods and services of both parties, if presented, is
relevant to a relatedness analysis.”). Further, this evidence indicates consumers
would view poke bowls and sushi dishes as complementary in that they frequently
appear on the same restaurant menu, feature similar primary ingredients (e.g., raw
seafood), and can be ordered together. Cf. In re Martin’s Famous Pastry Shoppe, Inc.,
748 F.2d 1565, 1567 (Fed. Cir. 1984) (“[C]omplementary use has long been recognized
as a relevant consideration in determining a likelihood of confusion.”); In re Cook
Med. Techs. LLC, No. 77882876, 2012 TTAB LEXIS 496, at *10 (“If goods [or services]
are complementary in nature, or used together, this relatedness can support a finding
of likelihood of confusion.”). In short, it would not be unreasonable for a consumer to
assume that a restaurant offering poke bowls also offers sushi dishes, or vice versa.27
27 Applicant argues that “[t]he coexistence of poke and sushi offerings under one roof reflects
modern restaurant trends, where culinary fusion and diverse menus are common,” and thus,
“[t]he fact that consumers routinely encounter both items without confusion about source or
brand undermines the claim that Applicant’s poke bowl restaurant would be mistaken for a
sushi-specific brand like GENKI SUSHI.” Applicant’s Appeal Brief, 6 TTABVUE 14.
Applicant’s argument conflates the concept of coexistence of similar marks for similar
services in the marketplace, which has not been established here, with Applicant’s own
concept of “coexistence”: the offering of both types of services by the same source. The
argument also presumes, without evidentiary support, that “consumers routinely encounter
both items without confusion about source or brand.” Finally, we are puzzled by the implied
premise of Applicant’s argument, namely, that consumers who are aware that restaurants

Serial No. 98841270
16
Applicant highlights the fact that its identification of services expressly excludes
“sushi restaurant services,” and argues that “when the identification is read as
written, the services at issue, poke-focused restaurant services versus sushi
restaurant services are sufficiently distinct to avoid confusion.”28 Applicant further
asserts that consumers would not “confuse poke restaurants with sushi restaurants,
even if both fall within the broader category of food services,” because “[p]oke is rooted
in Hawaiian cuisine and is typically served in bowls featuring customizable
ingredients, such as a marinated fish, rice or grain bases, vegetables, and various
sauces,” while “[s]ushi, by contrast, is a traditional Japanese cuisine associated with
specific preparation methods, ingredient combinations, and formal presentation.”29
However, “the issue is not whether consumers would confuse the [services]
themselves, but rather whether they would be confused as to the source of the
[services].” In re Davia, No. 85497617, 2014 TTAB LEXIS 214, at *25. Thus, as the
Examining Attorney correctly points out, the question in this case “is not whether
consumers can differentiate between sushi and poke when given both options on a
menu,” but “whether the services are sufficiently related that consumers are likely to
assume that they emanate from the same source.”30
can, and often do, offer both poke bowls and sushi would not, or could not, mistakenly believe
that poke bowl restaurant services and sushi restaurant services offered under similar marks
emanate from the same source. This runs counter to both logic and well-settled case law. See,
e.g., See Hewlett-Packard, 281 F.3d at 1267; Recot, 214 F.3d at 1328-29. Therefore, we find
Applicant’s argument unpersuasive.
28 Applicant’s Appeal Brief, 6 TTABVUE 12.
29 Id.
30 Examining Attorney’s Brief, 8 TTABVUE 11.

Serial No. 98841270
17
When assessing the relatedness of respective services, it is sufficient that the
conditions and activities surrounding the marketing of the services are such that they
would or could be encountered by the same persons under circumstances that could,
because of the similarity of the marks, give rise to the mistaken belief that they
originate from the same source. See Coach Servs., 668 F.3d at 1396; 7-Eleven, Inc. v.
Wechsler, No. 91117739, 2007 TTAB LEXIS 28, at *18. And here, the evidence
establishes just that.
Accordingly, we find that the respective services are closely related and that the
second DuPont factor thus weighs in favor of a conclusion that confusion is likely.
D. Trade Channels and Classes of Consumers
Next, we consider established, likely-to-continue channels of trade, the third
DuPont factor. DuPont, 476 F.2d at 1361. Because there are no restrictions in either
the application or cited registration as to the identified services’ channels of trade or
classes of consumers, we presume that the respective identifications encompass all
services of the type described, that the identified services travel through all normal
channels of trade for such services, and that they are available to all classes of
purchasers of such services. See Levi Strauss & Co. v. Abercrombie & Fitch Trading
Co., 719 F.3d 1367, 1373 (Fed. Cir. 2013); In re Guild Mortg. Co., No. 86709944, 2020
TTAB LEXIS 17, at *15.
And, here, the third-party evidence of record supports a finding that the respective
services are encountered by the same classes of consumers in the same channels of
trade. The third DuPont factor therefore also weighs in favor of a conclusion that
confusion is likely.

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E. Purchasing Conditions and Sophistication of Purchasers
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361. Applicant argues, without evidence, that, “[h]ere, the
typical purchaser of poke or sushi services exercises discernment and relies on more
than a single shared term when selecting among competing dining options.”31
However, “attorney argument is no substitute for evidence.” Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018) (quoting Enzo Biochem v. Gen-Probe, Inc.,
424 F.3d 1276, 1284 (Fed. Cir. 2005)). Further, the services, as identified here, are
not limited to particular classes or types of purchasers, or to specific trade channels,
and thus are available to members of the general public. See Cunningham v. Laser
Golf Corp., 222 F.3d 943, 948 (Fed. Cir. 2000) (affirming Board finding that where
the identification is unrestricted, “we must deem the goods [or services] to travel in
all appropriate trade channels to all potential purchasers of such goods [or services]”).
We must therefore consider the sophistication of all ordinary consumers of poke bowl
restaurant services and sushi restaurant services. We must also presume that the
standard of care for purchasing decisions in connection with these services is that of
the least sophisticated potential purchaser. See Stone Lion, 746 F.3d at 1325. In this
case, that least sophisticated purchaser is a member of the general public, who may
have less knowledge about such restaurant services and exercise less diligence in
their purchasing decisions. In the absence of evidence to the contrary, we cannot
31 Applicant’s Appeal Brief, 6 TTABVUE 20.

Serial No. 98841270
19
conclude that the least sophisticated purchasers here will exercise anything other
than ordinary care in selecting the services at issue. In any event, even sophisticated
purchasers are not immune from source confusion, especially where, as here, the
services are closely related and are being offered under similar marks. See Shell Oil,
992 F.2d at 1208 (citing Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 1548
(Fed. Cir. 1990) (affirming the Board’s reasoning that even sophisticated purchasers
may be confused by similar marks)).
Accordingly, we deem the fourth DuPont factor to be neutral.
II. Conclusion
Having considered all of the arguments and evidence of record pertaining to the
relevant DuPont factors, we find that the marks are similar in terms of sound,
appearance, connotation, and overall commercial impression; that Applicant’s
services and Registrant’s services are closely related; and that the respective services
travel through the same types of trade channels and are offered to the same or
overlapping classes of purchasers. All of these factors favor a conclusion that
confusion is likely, while the remaining relevant factor, relating to purchasing
conditions and consumer sophistication, is neutral. We therefore conclude that
confusion is likely.
Decision: The refusal under Trademark Act Section 2(d) to register Applicant’s
mark is affirmed.