The Toasted Yolk Cafe, LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: December 8, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re The Toasted Yolk Cafe, LLC
_____
Serial No. 97579560
_____
Hamutal G. Lieberman, of Helbraun & Levey LLP,
for The Toasted Yolk Cafe, LLC
Philip Liu, Trademark Examining Attorney, Law Office 109,
Michael Kazazian, Managing Attorney
_____
Before Heasley, Casagrande, and Bradley, Administrative Trademark Judges.
Opinion by Casagrande, Administrative Trademark Judge:
The Toasted Yolk Cafe, LLC (Applicant) seeks registration on the Principal
Register of the mark for “Restaurant and café services,” in
International Class 43.1
1 Application Ser. No. 97579560 was filed on September 6, 2022, under Section 1(a) of the
Lanham Trademark Act, 15 U.S.C. § 1051(a), claiming a date of first use anywhere and in
commerce of March 1, 2021. The application describes the mark as follows: “The mark

Serial No. 97579560
- 2 -
The USPTO Examining Attorney refused registration under Section 2(d), 15
U.S.C. § 1052(d), due to likelihood of confusion with two standard-character marks
owned by the same registrant, both registered for “Café services; Restaurant services”
in International Class 43: TOAST A BRUNCH LIFE2 and A CALI LIFE IS A
BRUNCH LIFE.3
After the Examining Attorney issued a final refusal,4 Applicant simultaneously
requested reconsideration and appealed.5 We suspended the appeal and remanded to
the Examining Attorney to consider the request for reconsideration.6 The Examining
Attorney denied the request,7 upon which we resumed the appeal.8 Both Applicant
and the Examining Attorney filed appeal briefs.9 The appeal is now ready for decision.
For the reasons explained below, we affirm the refusal.
consists of the wording ‘BRUNCH LIFE’ in stylized font, above an egg with arms and legs
holding a champagne glass inside a circle.” Color is not claimed as a feature of the mark, and
Applicant disclaims any exclusive right in the word BRUNCH apart from the mark as
depicted.
2 Reg. No. 6790989 (the ’989 Registration) issued on July 12, 2022.
3 Reg. No. 6816225 (the ’225 Registration) issued on August 9, 2022.
4 See March 23, 2024, Final Office Action. Any citations to specific pages of prosecution
filings will be to .pdf-format versions of the documents as downloaded from the USPTO’s
Trademark Status & Document Retrieval (TSDR) electronic trademark docketing system.
5 See September 23, 2024, Request for Reconsideration; Notice of Appeal, 1 TTABVUE.
References to the briefs and appeal record cite to the Board’s TTABVUE electronic docket
system. The number preceding “TTABVUE” represents the docket number assigned to the
cited filing in TTABVUE and any number immediately following “TTABVUE” identifies the
specifically-cited page(s), if any.
6 See 2 TTABVUE.
7 See April 19, 2025, Denial of Reconsideration.
8 See 5 TTABVUE.
9 See 6 TTABVUE (Applicant’s brief); 8 TTABVUE (Examining Attorney’s brief).

Serial No. 97579560
- 3 -
ANALYSIS
Section 2(d) of the Trademark Act 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 of the applicant, to cause confusion, or
to cause mistake, or to deceive.” 15 U.S.C. § 1052(d). We determine whether confusion
is likely by analyzing all probative facts in evidence relevant to the likelihood-of-
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
1361 (CCPA 1973). See, e.g., In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed.
Cir. 2023). Though du Pont lists thirteen numbered factors (some with subparts), we
generally address only those that are relevant and material to the case before us, see,
e.g., Shen Mfg. Co. v. Ritz Hotel, Ltd., 393 F.3d 1238, 1241 (Fed. Cir. 2004); Octocom
Sys., Inc. v. Houston Computer Servs., Inc., 918 F.2d 937, 943 (Fed. Cir. 1990)—
typically the factors that the parties address and on which there is relevant evidence
in the record. See, e.g., Dollar Fin. Grp., Inc. v. Brittex Fin., Inc., 132 F.4th 1363,
1371-72 (Fed. Cir. 2025); Cunningham v. Laser Golf Corp., 222 F.3d 943, 946-47 (Fed.
Cir. 2000). We then weigh together our findings on these factors to determine if, on
balance, they indicate that confusion is likely. See, e.g., Charger Ventures, 64 F.4th
at 1381; In re Majestic Distilling Co., 315 F.3d 1311, 1319 (Fed. Cir. 2003).
We will first compare the application to TOAST A BRUNCH LIFE. If we find
confusion likely, the application will stand refused, and there will be no need to assess
whether confusion is likely in light of A CALI LIFE IS A BRUNCH LIFE. We will

Serial No. 97579560
- 4 -
assess the latter registered mark only if we find confusion unlikely between
Applicant’s mark and TOAST A BRUNCH LIFE.
A. Comparison of the marks
The first likelihood-of-confusion factor assesses “[t]he similarity or dissimilarity
of the marks in their entireties as to appearance, sound, connotation and commercial
impression.” du Pont, 476 F.2d at 1361. This is always an important inquiry. See, e.g.,
Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165 (Fed. Cir. 2002);
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976).
“Similarity is not a binary factor but is a matter of degree.” In re St. Helena Hosp.,
774 F.3d 747, 752 (Fed. Cir. 2014) (citation omitted). “The proper test is … 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, 1323 (Fed. Cir. 2017) (citation
omitted); see also Phillips Petroleum Co. v. Knox Indus. Corp., 277 F.2d 945, 947
(CCPA 1960) (“This issue is whether the marks are confusingly similar, not whether
they are identical.”) (citation omitted).
In assessing the marks, we compare their “appearance, sound, connotation and
commercial impression.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
1340 (Fed. Cir. 2015) (citation omitted); accord i.am.symbolic, 866 F.3d at 1324.
Similarity of all four aspects is not required; in an appropriate case, similarity in even
one aspect may be sufficient to show that confusion is likely. See, e.g., Krim-Ko Corp.

Serial No. 97579560
- 5 -
v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968); Cecile Gagnon Co. v.
Bourjois, Inc., 223 F.2d 731, 733 (CCPA 1955).
We do not compare the marks side-by-side, as though in a laboratory. See, e.g., St.
Helena Hosp., 774 F.3d at 751; Grandpa Pidgeon’s of Mo., Inc. v. Borgsmiller, 477
F.2d 586, 587 (CCPA 1973). The issue is not “whether one can distinguish the marks
at a given moment.” Geigy Chem. Corp. v. Atlas Chem. Indus., Inc., 438 F.2d 1005,
1007 (CCPA 1971). Rather, we keep in mind that consumers depend on their
recollection of marks to which they’ve previously been exposed and that their
memories are fallible. See, e.g., Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 1007 (CCPA 1981). Sometimes their recall of marks they’ve seen or heard before
is “dim,” see Neutrogena Corp. v. Bristol-Myers Co., 410 F.2d 1391, 1393 (CCPA 1969),
or “vague,” see In re J.F. Marr Co., 311 F.2d 814, 815 (CCPA 1963).
We compare marks in their entireties. See, e.g., Oakville Hills Cellar, Inc. v.
Georgallis Holdings, LLC, 826 F.3d 1376, 1380 (Fed. Cir. 2016). Sometimes, however,
“one feature of a mark may be more significant than another, and it is not improper
to give more weight to this dominant feature in determining the commercial
impression created by the mark.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 1368 (Fed. Cir. 2012) (citations omitted).
Turning to the marks at issue, the entire literal component of Applicant’s
composite mark is the term “BRUNCH LIFE,” which term also appears in TOAST A
BRUNCH LIFE. Applicant does not argue that those identical words mean something

Serial No. 97579560
- 6 -
different in the compared marks, so there’s that similarity in addition to the fact that
these terms look and sound the same.
Applicant argues that the two marks as a whole look and sound different because
of the presence of the words “TOAST A” before “BRUNCH LIFE” in the cited mark.10
True enough. That does result in a dissimilarity between the marks as wholes.
Applicant goes on to urge that the phrase “‘TOAST A’ introduces a different leading
word,”11 one referring either to “a particular food item” or “a celebratory act,” which
requires “additional cognitive processing.”12 Again, true enough. But, as the
Examining Attorney points out, “BRUNCH LIFE” is the concluding noun phrase in
the sentence “TOAST A BRUNCH LIFE,” and, as the object of that short sentence, it
creates a “strong focal point.”13 The Examining Attorney acknowledges the general
rule that leading words tend to contribute significantly to a mark’s overall
commercial impression14—a general rule which we, too, acknowledge15—but argues
10 See 6 TTABVUE 13-14.
11 See id. at 13.
12 See id. at 18. Although Applicant seems to refer a piece of toasted bread as a possible
meaning for the word “TOAST” in the mark, the rest of its argument differentiating the
marks is based on the verb meaning of “making a toast” as a celebratory act, and we agree
that is the much more natural reading of “TOAST A” in the cited mark.
13 See 8 TTABVUE 6-7.
14 See id. at 7-8.
15 There are instances where the same leading word may be “dominant” in one mark but not
necessarily dominant in another. See, e.g., Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin,
396 F.3d 1369, 1372-73 (Fed. Cir. 2005) ( VEUVE, while “prominent” in VEUVE CLIQUOT,
was even more important, i.e., was “the dominant feature,” in “VEUVE ROYALE”).

Serial No. 97579560
- 7 -
that, in the mark TOAST A BRUNCH LIFE, “‘BRUNCH LIFE’ carries the core
commercial significance.”16
While we and our primary reviewing court frequently note that, when determining
a multi-component mark’s overall legal significance, one component’s contribution to
the impression may be “dominant” in that mark as a whole, there’s no legal rule that
says one component has to dominate. In the mark of the cited registration, we do not
think it necessary to try to coax out any greater precision than that “BRUNCH LIFE,”
as the object in the sentence “TOAST A BRUNCH LIFE,” contributes in a substantial
way to the mark’s overall commercial impression.
Applicant argues that the design element in its mark creates a visual difference
and a whimsical impression.17 That’s not an inaccurate observation. But we don’t
think it moves the needle much here. The design comprises a drawing of an egg (a
common brunch food18) with two human legs and two human arms, one of which is
holding a champagne glass (as one would while “toasting” someone or something19).
So, while whimsical, the design does little to detract, or even distract, from the
similarities in the marks as wholes. If anything, the egg figure serves to reinforce the
16 See id. at 7.
17 See 6 TTABVUE 13, 19.
18 We note that eggs are featured in one of the three brunch menu items depicted on the
substitute specimen Applicant submitted with its October 30, 2023, Response to the Nonfinal
Office Action, at TSDR 9.
19 We take judicial notice that the definition of “toast” as a verb—which is how it is used in
the ’989 Registration—is: “to hold up your glass and then drink as an expression of good
wishes or respect.” https://dictionary.cambridge.org/us/dictionary/english/toast (checked Dec.
4, 2025); see, e.g., B.V.D. Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727, 728 (Fed.
Cir. 1988) (tribunals may take judicial notice of dictionaries and encyclopedias); Hancock v.
Am. Steel & Wire Co., 203 F.2d 737, 740 (CCPA 1953) (same).

Serial No. 97579560
- 8 -
focus on the common term “brunch” and create another similarity between
Applicant’s mark and the mark in the ’989 Registration because the egg holding a
champagne glass could be interpreted as making a toast. But even without indulging
that last observation, it is clear to us, and we find, that the marks’ overall commercial
impressions are more similar than dissimilar.
B. Comparison of the services
The likelihood-of-confusion inquiry also examines “[t]he similarity or dissimilarity
and nature of the goods or services as described in an application or registration.” du
Pont, 476 F.2d at 1361. We compare the services as they are set forth in the
applications and registration. See, e.g., In re Detroit Athl. Co., 903 F.3d 1297, 1307
(Fed. Cir. 2018); i.am.symbolic, 866 F.3d at 1325.
Here, Applicant does not dispute that the services identified in the application and
in the ’989 Registration are identical.
C. Comparison of the channels of trade and the classes of
relevant customers
Another consideration in determining whether confusion is likely is “[t]he
similarity or dissimilarity of established, likely-to-continue trade channels.” du Pont,
476 F.2d at 1371. It is also “relevant to consider the degree of overlap of consumers
exposed to the respective services ….” In re Shell Oil Co., 992 F.2d 1204, 1207 (Fed.
Cir. 1993); see also du Pont, 476 F.2d at 1361 (listing “buyers to whom sales are made”
as a consideration). We make our assessment of the trade channels and customer
classes based on the services as set forth in the applications and cited registration.

Serial No. 97579560
- 9 -
See, e.g., Detroit Athl., 903 F.3d at 1308; Glamorene Prods. Corp. v. Procter & Gamble
Co., 538 F.2d 894, 896 (CCPA 1976).
The Examining Attorney correctly points out that where, as here, an application
and registration list identical services, “absent restrictions in the application and
registration, [the] services are presumed to travel in the same channels of trade to
the same class of purchasers.”20 In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir.
2012)) (citations omitted). Applicant neither addresses these factors nor points us to
any evidence that would rebut this presumption. Accordingly, we find that the
channels of trade and classes of customers for these identical services likewise is
identical.
D. Applicant’s “sophisticated consumers” argument is
unsupported by any evidence
Applicant waxes lyrical on “the careful and deliberate nature of consumer
decision-making in the restaurant and café sector,” highlighting consumers’
“thorough research” and “thoughtful approach.”21 According to Applicant, this
“significantly mitigates the risk of confusion between the marks.”22
We agree that, where there is evidence bearing on consumer care, “careful,
sophisticated purchasing” should be taken into account. See du Pont, 476 F.2d at 1361
(“under Sec. 2(d), … the following, when of record, must be considered: … (4) The
conditions under which … sales are made, i. e. “impulse” vs. careful, sophisticated
20 See 8 TTABVUE 13.
21 See 6 TTABVUE 20-21.
22 See id. at 21.

Serial No. 97579560
- 10 -
purchasing”) (emphasis added). But there is no evidence in the record that would
support the finding Applicant urges us to make, revealing these assertions to be mere
attorney argument. That is not a basis on which we can make a factual finding. See,
e.g., In re Fiesta Palms, LLC, No. 76595049, 2007 WL 950952, at *7 (TTAB 2007) (“we
must decide the case based on the evidence of record and not on what either the
examining attorney or applicant argues the facts are”); see generally Cai v. Diamond
Hong, Inc., 901 F.3d 1367, 1371 (Fed. Cir. 2018) (“Mr. Cai’s Main Brief contains
numerous assertions of fact. This information is not evidence under any of the
relevant rules, as the TTAB recognized.”) (citation omitted); In re Simulations
Publ’ns, Inc., 521 F.2d 797, 798 (CCPA 1975) (“Statements in a brief cannot take the
place of evidence.”) (citation omitted); Acomb v. Polywood Plastics Corp., No.
91054738, 1975 WL 21253, at *3 (TTAB 1975) (“Speculation and surmise is no
substitute for evidence.”).
Further, we note that we must base our decision on the least sophisticated among
the classes of customers at issue. Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP,
746 F.3d 1317, 1323 (Fed. Cir. 2014). Here, the services are restaurant and café
services. With no other restrictions in the application or the ’989 Registration, these
services are considered to be available to the public generally, to both careful and
impulsive consumers alike.
In the absence of any evidence supportive of Applicant’s “sophisticated
purchasers” argument, we find this factor neutral. See, e.g., In re Opus One, Inc., No.
75722593, 2001 WL 1182924, at *7 (TTAB 2007) (“There is no evidence in the record

Serial No. 97579560
- 11 -
from which we might conclude that wine and restaurant services, in general, are
necessarily expensive, or that purchasers thereof are necessarily sophisticated and
careful in making their purchasing decisions. Accordingly, this du Pont factor does
not weigh in applicant’s favor in this case.”); see also Gen. Aniline & Film Corp. v.
Hukill Chem. Corp., 287 F.2d 926, 927-28 (CCPA 1961) (rejecting a “discriminating
purchasers” argument where the goods were unrestricted as to classes of purchasers
and “[t]here is no evidence other than the nature of the goods themselves from which
we can determine whether purchasers of applicant’s goods defined in the opposed
application are discriminating purchasers”).
E. Weighing the findings on the relevant factors together
Having made findings on each of the relevant likelihood-of-confusion factors at to
the ’989 Registration, our final step is to assess together the findings we have made
on the relevant factors to determine if, on balance, they indicate that confusion is
likely as to the marks before us. See, e.g., Charger Ventures, 64 F.4th at 1384.
“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and differences in the marks.”
Federated Foods, 544 F.2d at 1103; In re Max Cap. Grp. Ltd., No. 77186166, 2010 WL
22358, at *1 (TTAB 2010) (“In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods and/or services.”) (citations omitted).
Where, as here, we have found the services identical, we must “alter” our
“tolerance for substantial and confusing similarities between … competing marks”

Serial No. 97579560
- 12 -
accordingly. Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877
(Fed. Cir. 1992). In other words, where the services are identical, the degree of mark
similarity that is likely to result in confusion “declines.” Viterra, 671 F.3d at 1363; In
re Mighty Leaf Tea, 601 F.3d 1342, 1348 (Fed. Cir. 2010); Century 21 Real Estate, 970
F.2d at 877. Here, while the marks are not identical, we found them to have more
similar than different. This finding, in the circumstances presented here, weighs in
favor of a conclusion that confusion is likely.
Adding further weight toward a conclusion that confusion is likely are our findings
that the channels of trade and classes of customers for the services identified in the
application and the ’989 Registration are identical.
The factor assessing the degree of care exercised by consumers of restaurant and
café services is neutral.
With all the relevant factors on which we have made findings pointing toward a
conclusion that confusion is likely, and one factor being neutral, we have no difficulty
in concluding that confusion is likely as between Applicant’s mark and the mark of
the ’989 Registration.
Decision: Our conclusion that confusion is likely as between Applicant’s mark
and the mark of the ’989 Registration means that the application must be refused
under Section 2(d) of the Act. We affirm the refusal on this basis. We need not decide
whether, alternatively, confusion is likely as between Applicant’s mark and the mark
in the ’225 Registration.