Little Anita's Mexican Food Inc. v. Green Chili, Inc.

This Opinion is Not a
Precedent of the TTAB
Mailed: September 3, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Little Anita’s Mexican Food Inc.
v.
Green Chili, Inc.
_____
Opposition No. 91294339
_____
Dwayne K. Goetzel of Kowert, Hood, Munyon, Rankin & Goetzel, P.C.,
for Little Anita’s Mexican Food Inc.
Scott T. Kannady of Brown & Kannady,
for Green Chili, Inc.
_____
Before Larkin, Cohen and O’Connor, Administrative Trademark Judges.
Opinion by Cohen, Administrative Trademark Judge:
Applicant Green Chili, Inc. seeks registration of the mark LITTLE ANITA’S for
“restaurant services, including sit-down service of food and take-out restaurant
services” in International Class 43 (the “Application”).1 In its notice of opposition,
Opposer Little Anita’s Mexican Food Inc. alleges common law prior use of LITTLE
1 Application Serial No. 98373583, filed January 24, 2024 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on an allegation of use in commerce and
anywhere of May 1, 2015.

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ANITA’S “in connection with restaurant services [starting] in 1984.”2 As its sole
ground for opposition, Opposer alleges that use of Applicant’s mark will likely cause
confusion with Opposer’s common law mark under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d).
Applicant’s Answer admits that:
• “Opposer has used the ANITA’S and LITTLE ANITA’S marks”;3
• “its application is after the first use of the Opposer’s mark”;4 and
• “Applicant’s LITTLE ANITA’S mark is identical and therefore confusingly
similar to Opposer’s Mark with respect to, inter alia, the sight, sound, and
meaning. In addition, the services offered under Applicant’s mark and
Opposer’s Mark (i.e. restaurant services) are identical.”5
Applicant denies the remaining allegations6 and asserts affirmative defenses of
laches, estoppel, acquiescence and waiver.7
I. The Record and Evidentiary Objections
The record consists of the pleadings and, by operation of Trademark Rule
2.122(b), 37 C.F.R. § 2.122(b), the file of the Application. All of Applicant’s
2 1 TTABVUE 3.
3 Answer, 4 TTABVUE 3, ¶2.
4 Id. at 3, ¶4.
5 Id. at 4, ¶6.
6 Id. at 2-4.
7 Id. at 5, ¶¶11-12. Applicant also asserted the defense of failure to state a claim which is
not a true affirmative defense (id. at ¶10), so we do not address it as such. See, e.g., John W.
Carson Found. v. Toilets.com, Inc., No. 91181092, 2010 WL 1233881, at *9 (TTAB 2010)
(“The asserted defense of failure to state a claim is not a true affirmative defense because it
relates to an assertion of the insufficiency of the pleading of opposer’s claim rather than a
statement of a defense to a properly pleaded claim.”).

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documentary evidence and testimony was stricken by the Board.8 Opposer
introduced additional evidence and testimony which we do not list here. All evidence
that is properly of record has been carefully considered, and relevant testimony and
documentary evidence is discussed throughout this opinion. See Quiktrip W., Inc. v.
Weigel Stores, Inc., 984 F.3d 1031, 1036 (Fed. Cir. 2021) (Board not obliged to
expressly discuss every piece of evidence).
Opposer, in its reply brief, objects to Applicant’s reliance on evidence stricken by
the Board, and we sustain the objection and have not considered any stricken
evidence.9 Any factual assertions in Applicant’s brief unsupported by evidence in the
record will not be considered.10 See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1371
(Fed. Cir. 2018) (agreeing with Board that factual statements made in a brief are not
evidence introduced at trial).
II. Entitlement to a Statutory Cause of Action
Entitlement to a statutory cause of action is an element of the plaintiff’s case in
every inter partes case. See Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed.
8 Opposer filed a motion to strike Applicant’s testimony and notice of reliance, 9-12
TTABVUE, alleging the submissions “were not disclosed, were improperly submitted, failed
to comply with applicable TTAB rules, rules of evidence, and/or rules of civil procedure….”
13 TTABVUE. Applicant did not file a brief in response and thus, the Board granted the
motion to strike as conceded. 14 TTABVUE 1 (“Opposer’s motion to strike is GRANTED as
conceded … Applicant’s trial materials are STRICKEN.”) (emphasis in original).
9 18 TTABVUE 5-8. Applicant did not move to reconsider the Board’s order granting
Opposer’s motion to strike Applicant’s evidence and the time to do so has expired. See
TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) § 518 (2026).
10 Of course, once properly made of record, any party may rely on, for any permissible
purpose, the evidence and discovery submitted by the other party. Nazon v. Ghiorse, No.
91216729, 2016 WL 3876810, at *2 n.6 (“Once evidence is properly of record, it may be relied
on by any party for any purpose.”).

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Cir. 2020). To establish entitlement to a statutory cause of action, a plaintiff must
demonstrate: (i) an interest falling within the zone of interests protected by the
statute and (ii) a reasonable belief in damage proximately caused by the registration
of the mark. Id.
Applicant does not dispute Opposer’s entitlement to oppose. Opposer claims
common law rights in the mark LITTLE ANITA’S, a mark it claims is confusingly
similar to Applicant’s mark. Opposer’s former Chief Financial Officer and Controller
and current subcontractor, Robb Haltom, testifies that on May 4, 1984, Opposer
“amended its name to Little Anita’s Mexican Food, Inc. with the New Mexico State
Corporation Commission and began to operate restaurants under the mark LITTLE
ANITA’S,”11 and that “[s]ince 1984, Little Anita’s has owned and operated several
restaurants using the LITTLE ANITA’S mark in New Mexico, Arizona, and
Colorado.”12 This testimony is sufficient to establish that Opposer has a real interest
in this proceeding and a reasonable basis for its belief in damage based on a claim of
likelihood of confusion that Applicant admits has merit. See Monster Energy Co. v.
Lo, No. 91225050, 2023 WL 417620, at *5 (TTAB 2023) (entitlement found based on
declaration of opposer’s CEO attesting to opposer’s use of allegedly similar pleaded
mark); Giersch v. Scripps Networks, Inc., No. 92045576, 2009 WL 706673, at *2
(TTAB 2009) (alleged prior common law rights provided a basis for entitlement).
11 Haltom Decl., 8 TTABVUE 5, ¶4.
12 Id. at ¶5.

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III. Section 2(d) Claim
To prevail on its likelihood of confusion claim under Section 2(d), Opposer, relying
on common law rights, must establish that it has priority of use, and that
contemporaneous use of the parties’ marks in connection with their respective
services would be likely to cause confusion or mistake, or to deceive consumers. See
Trademark Act Section 2(d); New Era Cap Co., Inc. v. Pro Era, LLC, No. 91216455,
2020 WL 2853282, at *6 (TTAB 2020).
A. Priority
Priority under Trademark Section 2(d) requires either a registration “or a mark
or trade name previously used in the United States by another and not
abandoned.” 15 U.S.C. § 1052(d).
As noted, Opposer’s former Chief Financial Officer and Controller testifies that
Opposer began use of LITTLE ANITA’S in New Mexico in connection with
restaurant services on May 4, 1984.13 This testimony is unrebutted. Further,
Applicant admits in its answer that “Opposer has used the ANITA’S and LITTLE
ANITA’S marks”;14 and in response to Opposer’s allegation that “[t]he filing date of
Applicant’s application is well after the first use of Opposer’s Mark [LITTLE
ANITA’S] and well after Opposer established common law rights in the Mark,”15
13 Haltom Decl., 8 TTABVUE 5, ¶¶4-5.
14 Answer, 4 TSDR 3, ¶2.
15 Notice of Opposition, 1 TTABVUE 4, ¶4.

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Applicant admits that “its application is after the first use of the Opposer’s mark.”16
See Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 929 (CCPA
1978) (“Facts alone may be ‘admitted.’ In reaching the legal conclusion, the decision
maker may find that a fact, among those on which the conclusion rests, has been
‘admitted….”).
For purposes of priority, Applicant is entitled to rely on its constructive use date
of January 24, 2024, which is the filing date of its involved application. 15 U.S.C.
§ 1057(c) (“[T]he filing of the application to register [a] mark shall constitute
constructive use of the mark, conferring a right of priority, nationwide in effect, on
or in connection with the goods or services specified[.]”). Applicant’s application
claims a date of first use at least as early as May 1, 2015 and Applicant asserts that
it obtained rights in LITTLE ANITA’S in 2005.17 To the extent Applicant asserts its
claimed date of first use or attempts to establish an earlier date of use, as noted
above, Applicant’s evidence has been stricken and hence there is no evidence of
record to support those allegations. See Cai, 901 F.3d at 1371 (“Attorney argument
is no substitute for evidence.”) (citation omitted). In any event, we need not consider
whether there is evidence of record that supports these dates, because, even if it
does, these dates are later than the date of first use of May 4, 1984 established by
the unrebutted testimony of Opposer’s witness.
16 Answer, 4 TTABVUE 3, ¶4.
17 17 TTABVUE 24 (“First, Applicant adopted the LITTLE ANITA’S mark in 2005 when
Ponzio became part owner of the restaurants.”).

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We find that Opposer has established its common law priority for the mark
LITTLE ANITA’S for restaurant services. See Exec. Coach Builders, Inc. v. SPV
Coach Co., No. 91212312, 2017 WL 3034059, *11 (TTAB 2017) (“The oral testimony
even of a single witness may be adequate to establish priority, but only if it is
sufficiently probative.”).
B. Likelihood of Confusion
1. The Marks, Services and Trade Channels
Under the first DuPont factor, we determine the similarity or dissimilarity of the
marks in their entireties, considering their appearance, sound, connotation and
commercial impression. DuPont, 476 F.2d at 1361. The second DuPont factor
concerns the “similarity or dissimilarity and nature of the goods or services as
described in an application or registration...,” and the third DuPont factor concerns
the “similarity or dissimilarity of established, likely-to-continue trade channels.” Id.
Typically, the factors that compare the respective marks and the goods or services
are key considerations. See DC Comics v. Cellular Nerd LLC, No. 91246950, 2022
WL 17832492, at *11 (TTAB 2022).
As noted above, Applicant admitted in its answer that:
Applicant’s LITTLE ANITA’S mark is identical and therefore confusingly
similar to Opposer’s Mark with respect to, inter alia, the sight, sound, and
meaning. In addition, the services offered under Applicant’s mark and
Opposer’s Mark (i.e. restaurant services) are identical.18
18 Answer, 4 TTABVUE 4, ¶6.

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While Applicant’s admission of likelihood of confusion is not dispositive because
likelihood of confusion is a question of law and “opinions of law [are] not admissions
of fact and thus cannot serve ... as admissions against interest ...” Brooks v. Creative
Arts By Calloway, LLC, No. 91160266, 2009 WL 4081696, at *4 (TTAB 2009), there
is no dispute (nor can there be one) that both parties’ LITTLE ANITA’S marks are
identical and are used for identical restaurant services.
Applicant argues that:
Opposer currently owns and operates five restaurants, all located in New
Mexico. Opposer’s operations are geographically limited to New Mexico, with
no current presence in Colorado or any other state. Opposer previously
operated restaurants in Colorado but withdrew from that market. There is
no geographic overlap between Applicant’s and Opposer’s current
operations: Applicant operates exclusively in Colorado (specifically the
Denver metro area) while Opposer operates exclusively in New Mexico.19
Applicant also argues that because Opposer has withdrawn from the Colorado
market, Opposer has “no current trademark rights in Colorado that could be
infringed by Applicant’s use.”20
Opposer asserts that Applicant, having licensed the LITTLE ANITA’S mark from
Opposer in 2015 until 2025,21 had knowledge of Opposer prior to filing the opposed
19 17 TTABVUE 10; see id. at 18.
20 Id. at 19.
21 16 TTABUE 23. Both parties acknowledge that Opposer licensed the mark LITTLE
ANITA’S to Applicant on May 4, 2015 with an initial term of 10 years. See 16 TTABVUE 11;
17 TTABVUE 32-33. Opposer asserts that in the terms of the license, Applicant
acknowledged that Opposer “developed identifiable and unique name recognition with
regard to the name Little Anita’s,” Haltom Decl., 8 TTABVUE 10, ¶17; and that “[a]t all
times prior to, during, and following the term of [the Licensing] Agreement, the trademarks
… and any and all other intellectual property rights … are, and shall remain, the sole and
exclusive property of [Opposer].” Id. Opposer designated the entire license agreement as
confidential but the identification of the licensing parties and some of the terms of the license

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application;22 that Applicant is “prevented from contesting the geographic scope of
the mark when Applicant licensed Opposer’s Mark”;23 that Opposer “has offered its
services in Colorado, has consumers in Colorado, and still advertises nationally”;24
and that “Applicant’s claim that Opposer has abandoned its rights in Colorado … is
unsupported by law, evidence, or facts.”25
Applicant’s arguments26 ignore that its application is geographically unrestricted
and therefore nationwide in scope. Because Applicant is seeking a geographically
unrestricted registration, we are required to evaluate the DuPont likelihood of
confusion factors in terms of nationwide markets. Chutter, Inc. v. Great Mgmt. Grp.,
LLC, No. 91223018, 2021 WL 4494251, at *21 (TTAB 2021) (geographic disparity is
agreement were identified by the parties in their public briefing and other filings. See, e.g.,
7 TTABVUE; Haltom Decl., 8 TTABVUE 10-11, ¶17; id. at 45; 16 TTABVUE 11-12. In
accordance with our policy, the Board will treat as confidential only such portions of the
license that are truly confidential and discuss those portions that cannot be reasonably
termed confidential and are necessary to explain our decision. See Trademark Rule 2.116(g),
37 C.F.R. § 2.116(g) (“The Board may treat as not confidential that material which cannot
reasonably be considered confidential, notwithstanding a designation as such by a party.”).
22 Id.
23 18 TTABVUE 14.
24 18 TTABVUE 16; see Haltom Decl., 8 TTABVUE 8, ¶11 (“Opposer’s restaurants operated
under the LITTLE ANITA’S mark are located in New Mexico, but provide services to
customers from all over the country.”).
25 18 TTABVUE 16.
26 Applicant relies on Burger King of Florida, Inc. v. Hoots, 403 F.2d 904, 906 (7th Cir. 1968)
asserting that the Court found “a junior user may have enforceable rights limited to a locale.”
17 TTABVUE 16. The type of reasoning applied in Burger King is inapposite here because
this is not a trademark infringement case but rather, an administrative proceeding to
determine whether the mark in the subject application is entitled to nationwide federal
registration for services as they are identified in the application and not as they are actually
used. Also, “[i]t has been said many times that each case must be decided on its own facts.”
In re Eagle Crest Inc., No. 77114518, 2010 WL 3441109, at *2 (TTAB 2010) (citing In re Nett
Designs, Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001)).

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not, in and of itself, a basis to find there is no likelihood of confusion; the Board must
evaluate the marks and use in terms of potentially nationwide markets when an
applicant is seeking a geographically unrestricted registration), rev’d on other
grounds, 90 F.4th 1333 (Fed. Cir. 2023). It is therefore irrelevant that the parties
purportedly operate in different states or that Opposer may have stopped using its
mark in Colorado. See id.; cf. Trademark Rule 2.133(c) (“Geographic limitations will
be considered and determined by the Trademark Trial and Appeal Board only in the
context of a concurrent use proceeding”). Regardless of the locations of Applicant’s
and Opposer’s current actual restaurants, Applicant is not entitled to a registration
of national scope if its mark would give rise to a likelihood of confusion in any part
of the country.
Because the services are identical and the identification of services in Applicant’s
application contains no restrictions as to channels of trade or classes of consumers,
under the third and fourth DuPont factors, we presume that Applicant’s services are
offered in all channels of trade normal for those services to all available classes of
consumers for those services, namely, general consumers seeking restaurant
services. Hunter Indus., Inc. v. Toro Co., No. 91203612, 2014 WL 1649332, at *11
(TTAB 2014) (“Although opposer’s common law rights are limited to the actual goods
and channels of trade for which it uses its mark, we must consider applicant’s goods
to encompass all the goods as they are recited in the application.”) (citation omitted).
Because the marks and services are identical, the first and second factors weigh
strongly in favor of a likelihood of confusion; and given the unrestricted nature of

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the services in the application, the third and fourth factors weigh in favor of a
likelihood of confusion.
2. Strength of Opposer’s Mark
We now consider the strength or weakness of Opposer’s mark as used in
connection with the relevant services because such a determination helps inform us
as to the scope of protection. See Made in Nature, LLC v. Pharmavite LLC, No.
91223352, 2022 WL 2188890, at *11-12 (TTAB 2022) (citing DuPont, 476 F.2d at
1361). “A well-known mark enjoys an appropriately wider latitude of legal
protection, for similar marks tend to be more readily confused with a mark that is
already known to the public.” Opryland USA Inc. v. Great Am. Music Show, Inc., 970
F.2d 847, 851 (Fed. Cir. 1992) (citation omitted).
When evaluating the strength or weakness of a mark, we look at the mark’s
inherent strength based on the nature of the term itself, and its commercial strength
in the marketplace. Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362-63 (Fed. Cir. 2023)
(“Two of the DuPont factors (the fifth and sixth) consider strength.”); In re
Chippendales USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010) (measuring both
conceptual and marketplace strength); see also Made in Nature, 2022 WL 2188890,
at *11-12 (citing DuPont, 476 F.2d at 1361); New Era Cap, 2020 WL 2853282, at *12
(“[T]he strength of a mark is not a binary factor, but varies along a spectrum from
very strong to very weak.”) (quoting In re Coors Brewing Co., 343 F.3d 1340, 1345
(Fed. Cir. 2003)). The fifth DuPont factor enables an opposer to prove that its pleaded
mark is entitled to an expanded scope of protection by adducing evidence of the fame
of the prior mark (sales, advertising, length of use). By contrast, the sixth DuPont

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factor allows an applicant to argue that confusion is less likely by adducing evidence
of conceptual and commercial weakness. Spireon, 71 F.4th at 1362.
a) Sixth DuPont Factor
“[T]he sixth DuPont factor, ‘[t]he number and nature of similar marks in use on
similar [services],’ DuPont, 476 F.2d at 1361, [ ] is a measure of the extent to which
other marks weaken the assessed mark.” Spireon, 71 F.4th at 1362 (citing Palm Bay
Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369 (Fed
Cir. 2005)).
Applicant has no evidence of record and thus, has submitted no evidence of third-
party registrations or any other evidence of conceptual weakness of Opposer’s mark
that we find probative. See Cai, 901 F.3d at 1371. Also, Opposer’s witness testifies
that “[t]here are no pending or registered marks for LITTLE ANITA’S other than
Applicant’s pending application.”27
The scope of protection of Opposer’s mark, registered on the Principal Register
without a claim of acquired distinctiveness, has not been shown to be diminished.
Opposer’s mark is entitled to the normal scope of protection to which inherently
distinctive marks are entitled. Iron Balls Int’l Ltd. v. Bull Creek Brewing, LLC, No.
92079099, 2024 WL 2844425, at *15 (TTAB 2024) (citation omitted).
We find the sixth DuPont factor is neutral.
27 Haltom Decl., 8 TTABVUE 11, ¶19; see 16 TTABVUE 24.

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b) Fifth DuPont Factor28
Turning to commercial strength or fame under the fifth DuPont factor, “[a] mark
with extensive public recognition and renown deserves and receives more legal
protection than an obscure or weak mark.” Omaha Steaks Int’l, Inc. v. Greater
Omaha Packing Co., 908 F.3d 1315, 1319 (Fed. Cir. 2018) (quoting Kenner Parker
Toys Inc. v. Rose Art Indus., Inc., 963 F.2d 350, 353 (Fed. Cir. 1992)). Such strength
rests on the extent to which “a significant portion of the relevant consuming public
… recognizes the mark as a source indicator.” Joseph Phelps Vineyards Holdings,
LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1324-25 (Fec. Cir. 2017) (citing Palm
Bay Imps., 396 F.3d at 1374-75)). In the context of a likelihood of confusion analysis,
the commercial strength of a mark is not a binary factor. Rather, it “varies along a
spectrum from very strong to very weak.” Joseph Phelps Vineyards, 857 F.3d at 1325
(quoting Palm Bay Imps., 396 F.3d at 1374-75).
28 Applicant asserts, unsupported by the record, that it has “made substantial investments
in developing the LITTLE ANITA’S mark in Colorado,” 17 TTABVUE 7; that it has
generated annual sales of over a million dollars, id. at 8; that it has received “significant
recognition in the Colorado market,” id.; and that its “commercial success provides
compelling evidence of strong trademark rights arising from actual use,” id. at 26.
Under DuPont’s fifth factor, we consider the “fame of the prior mark,” which, here, is
Opposer’s common law mark. See DuPont, 476 F.2d at 1361 (emphasis added). In any event,
even if Applicant had established that its own mark is famous, that alone would not support
registration of the mark. That is, “fame of either mark increases the likelihood of confusion
by making it more likely that purchasers will remember the famous mark and think of it
when encountering similar [services] sold under a similar mark. Of course, such likelihood
of confusion is only a reason to refuse a new registration, not grant one.” In re i.am.symbolic,
LLC, No. 85044494, 2015 WL 6746543, at *8 n.7 (TTAB 2015) (emphasis in bold here in
italics in the original), aff’d, 866 F.3d 1315, 1330 (Fed. Cir. 2017). When confusion is likely,
the fame of an applicant’s mark does not entitle the applicant to usurp a prior trademark
owner’s rights. See id. To the extent these assertions under the fifth DuPont factor are
relevant at all here, we deem them neutral.

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Under the fifth factor, commercial strength or fame may be measured not only
directly by consumer surveys or declarations but also indirectly by the volume of
sales and advertising expenditures in connection with the identified goods or
services sold under the mark, and supported by other indicia such as length of time
of use of the mark; widespread critical assessments; notice by independent sources
of the goods or services identified by the marks; the general reputation of the goods
or services; and social media presence. Monster Energy, 2023 WL 417620, at *10
(commercial strength under the fifth DuPont factor considers the fame of the prior
mark); Weider Publ’ns, LLC v. D & D Beauty Care Co., No. 91199352, 2014 WL
343269, at *6 (TTAB 2014); see also Bose Corp. v. QSC Audio Prods. Inc., 293 F.3d
1367, 1371 (Fed. Cir. 2002) (recognizing indirect evidence as appropriate proof of
strength). Depending on the industry, some context in which to place raw statistics
may be necessary (e.g., the substantiality of the sales or advertising figures for
comparable types of products or services). Bose, 293 F.3d at 1375.
Opposer’s former Chief Financial Officer and Controller and current
subcontractor testifies that Opposer has used LITTLE ANITA’S continuously since
May 1984;29 that Opposer has received favorable publicity;30 that Opposer has spent
over $320,000 in advertising the mark over the last thirteen years;31 that Opposer
29 16 TTABVUE 22; Haltom Decl., 8 TTABVUE 5, ¶4.
30 16 TTABVUE 22, Haltom Decl., 8 TTABVUE 8, ¶12. Opposer provides three examples of
its “favorable publicity.” Notice of Reliance, 6 TTABVUE 295-313. However, the Washington
Post article is from 2004 and refers to “Anita’s restaurants” not “Little Anita’s.” Id. at 296-
97. The Washington Post article is of no probative value.
31 16 TTABVUE 22; Haltom Decl., 8 TTABVUE 5, ¶7.

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has advertised on the internet with its Facebook page being viewed by
“approximately fifty thousand (50,000) people per month”;32 that Opposer has used
multiple types of formats and media for its advertising including signage, restaurant
materials, limited amounts of shirts and hats in “many different geographic areas
including New Mexico, Arizona and Colorado”;33 and that for the last five years,
revenue totals under the LITTLE ANITA’S mark have been over $3 million a year.34
While there are some indicia of commercial success (e.g., Opposer has used its
mark on restaurants since 1984 and its revenue in the last five years has been in
excess of $3 million/year), Opposer’s evidence of marketing and promotion efforts is
provided without context, such as market share, sales or advertising figures for
comparable types of services, or consumer exposure to enable us to determine the
extent to which Opposer’s efforts and expenses may indicate the well-known nature
of the LITTLE ANITA’S mark and to determine whether consumers recognize the
mark. See Omaha Steaks Int’l, 908 F.3d at 1320 (quoting Bose, 293 F.3d at 1375
(“raw numbers alone in today’s world may be misleading.”)). The lack of any real
means to compare Opposer’s revenue and advertising figures, the amount of press
its restaurants have received compared to other restaurant brands, how its
32 16 TTABVUE 22; Haltom Decl., 8 TTABVUE 5, ¶8. While Opposer provided details about
the number of monthly visitors to its Facebook page, no other analytics or metrics were
provided (e.g., whether the visitors were unique or exposed to the LITTLE ANITA’S mark,
and how long the visitors were engaged with the Facebook page). Opposer’s Instagram page
indicates there are 275 followers and its followers on X are 55. Notice of Reliance, 6
TTABVUE 229-31.
33 16 TTABVUE 22; Haltom Decl., 8 TTABVUE 6, ¶8.
34 Haltom Decl., 8 TTABVUE 7, ¶10.

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restaurant services rank in terms of sales in the trade, or how much consumer
exposure there has been to its advertising and promotional efforts, significantly
reduces the confidence we have in inferring that Opposer’s mark should be credited
with a significantly enhanced degree of commercial strength. See Heil Co. v. Tripleye
GmbH, No. 91277359, 2024 WL 4925901, at *20 (TTAB 2024); In re GJ & AM, LLC,
No. 86858003, 2021 WL 2374670, at *21 (TTAB 2021) (“Our precedents have long
alerted practitioners to the fact that the absence of evidence of competitive
contextual information may limit the probative value that we might otherwise
accord advertising and sales numbers in the acquired distinctiveness inquiry.”). As
explained in Omaha Steaks, “a 30-second spot commercial shown during a Super
Bowl football game may cost a vast sum, but the expenditure may have little if any
impact on how the public reacts to the commercial message.” Omaha Steaks Int’l,
908 F.3d at 1320.
We find that the evidence discussed above does not suggest a level of commercial
success and brand recognition that would indicate Opposer’s mark should be
accorded a broader scope of legal protection under the fifth DuPont factor.
We find the fifth DuPont factor is neutral.
3. Actual Confusion
The seventh DuPont factor contemplates the “[t]he nature and extent of
any actual confusion.” DuPont, 476 F.2d at 1361.
Opposer argues that in “online reviews of Applicant’s Colorado restaurant,
numerous customers have associated Applicant’s restaurant with Opposer’s

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restaurant before and after Applicant repudiated the licensing agreement by filing
the Application.”35
Applicant argues that “customers perceived a relationship between [Applicant’s
and Opposer’s] restaurants, which was the intended effect of the licensing
agreement. This is not trademark confusion, it is accurate consumer perception of
an actual business relationship”36 during the time the parties were operating under
their licensing agreement; and that “[t]he overall pattern of 20 years of concurrent
use, with no actionable confusion occurring during periods when the parties operated
independently, strongly supports a finding that confusion is not likely.”37 Applicant
asserts that consumer reviews “reveal a pattern of consumer behavior inconsistent
with trademark confusion”;38 and demonstrate an awareness that Applicant’s and
Opposer’s establishments are distinct entities.39
The reviews submitted by Opposer are admissible under the “state of mind”
hearsay exception under Fed. R. Evid. 803(3), even when offered for the truth of an
out-of-court declarant’s assertion. See, e.g., Dan Foam Aps v. Sleep Innovations, Inc.,
No. 92054201, 2013 WL 3168101, at *4 (TTAB 2013); cf. 7-Eleven Inc. v. Wechsler,
No. 91117739, 2007 WL 1431084, at *1 n.2 (TTAB 2007) (materials made of record
by notice of reliance under 37 C.F.R. § 2.122(e) not admissible for the truth of the
35 16 TTABVUE 20; see Notice of Reliance, 6 TTABVUE 388-452.
36 17 TTABVUE 20-21.
37 Id.at 21.
38 Id.
39 Id. at 22.

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matters contained therein, unless a competent witness has testified to the truth of
such matters);. Notwithstanding, the reviews are of little probative value in the
absence of testimony from the customers themselves as to whether they were
confused and, if so, what caused their confusion. See Dan Foam, 2013 WL 3168101
at *5; Edom Labs., Inc. v. Lichter, No. 91193427, 2012 WL 1267961, at *8 (TTAB
2012).
We note that there are at least three consumer reviews dated prior to the parties’
licensing agreement in which the consumer arguably appears to assume a
relationship between Opposer’s Albuquerque location and Applicant’s Colorado
locations.40 “Nevertheless, as noted, this evidence is of minimal probative value in
the absence of testimony from the third parties themselves ‘as to whether they were
confused and, if so, what caused their confusion. To the extent that this evidence has
any probative value, however, it serves to buttress our conclusion of likelihood of
confusion.’” Edom Labs., 2012 WL 1267961, at *8 (quoting Corp. Fitness Programs,
Inc. v. Weider Health and Fitness, Inc., No. 67868, 1987 WL 123827, at *9 (TTAB
1987) (finding third-party testimony as to alleged incidents of actual confusion of
40 Notice of Reliance, 6 TTABVUE 399 (Yelp review dated March 14, 2013 that reads “There
were Little Anita’s in Albuquerque but oddly enough, this location was much better”); id. at
400, 442 (Yelp review of Little Anita’s in Colorado dated November 14, 2014 which reads
“We’re from New Mexico, so is Little Anita’s.”); id. at 407-08 (Yelp review dated June 15,
2011 which reads “I wasn’t aware that the location was just one of a dozen locations in
Denver and Albuquerque”).
Opposer asserts in its trial brief that it “provided an example of customer confusion that
occurred between October 3, 2024 and May 12, 2025” at 6 TTABVUE 397, 18 TTABVUE 19;
however, the citation provided by Opposer does not reveal any consumer reviews dated after
the license agreement expiration of May 4, 2025 (there is a consumer review from March 27,
2025, however).

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“little probative value”), set aside on other grounds by Corp. Fitness Programs Inc. v.
Weider Health and Fitness Inc., No. 67868, 1988 WL 252374 (TTAB 1988)); see also
Molenaar, Inc. v. Happy Toys Inc., 1975 WL 20853, at *2 (TTAB 1975) (“While a
single instance is insufficient as evidence from which to conclude that applicant’s
mark has consistently caused confusion, the single instance of confusion is at least
‘illustrative of a situation showing how and why confusion is likely.”’)
(quoting Libbey-Owens-Ford Glass Co. v. Thermoproof Glass Co., 390 F.2d 770, 892
(CCPA 1968)).
“[I]n any event, [evidence of actual confusion] is not required in order to establish
likelihood of confusion.” Time Warner Entm’t Co. v. Jones, No. 75352605, 2002 WL
1628168, at *10 (TTAB 2002); see Giant Food, Inc. v. Nation’s Foodservice, Inc., 710
F.2d 1565, 1571 (Fed. Cir. 1983) (“it is unnecessary to show actual confusion in
establishing likelihood of confusion.”).
The seventh DuPont factor is neutral.
C. Summary of DuPont Factors
Opposer’s unrebutted testimony has established prior common law trademark
use of LITTLE ANITA’S for restaurant services. Applicant admits that the parties’
marks are identical and are used for identical services. The first and second DuPont
factors weigh heavily in favor of a likelihood of confusion. Given the identical nature
of the services and the unrestricted identification of services in Applicant’s
application, we presume an overlap in trade channels and classes of consumers and
thus, the third and fourth factors weigh in favor of a likelihood of confusion. The fifth

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and sixth DuPont factors regarding conceptual and commercial strength, and the
seventh DuPont factor regarding actual confusion, are all neutral.
We conclude that not only is there a likelihood of confusion, but as explained
below, confusion is inevitable. We now turn to Applicant’s affirmative defenses of
laches, estoppel, acquiescence and waiver asserted in its answer and trial brief.41
IV. Affirmative Defenses
Each of Applicant’s affirmative defenses relies, for the most part, on the same
facts, namely, that Opposer remained silent from 2005 through 2015 while Applicant
built its business using LITTLE ANITA’S; that Opposer later “authorized
Applicant’s use through the licensing agreement from 2015 through 2025”;42 that
Opposer allowed Applicant to rely on the license43 but then also allowed the license
to expire without objecting to Applicant’s continued use;44 that Opposer never sought
federal registration of LITTLE ANITA’S;45 and that Opposer withdrew from the
Colorado market where Applicant operates. Applicant argues that these allegations
41 Answer, 4 TTABVUE 5, ¶¶11-12.
42 17 TTABVUE 32.
43 Id.
44 Id. at 31.
45 Applicant asserts that it discovered that Opposer’s mark was not registered, which it
asserts “was significant because the licensing agreement represented that Opposer is the
owner of all right, title and interest in the Intellectual Property Rights.” 17 TTABVUE 10.
It is unclear if Applicant is asserting that the licensing agreement was invalid because it
was based on common law rights. Licensing of common law trademarks, however, is
permitted. See 2 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION §§ 18:43, 18:54 (5th
ed. 2026 update) (licensing of common law, nonfederally registered marks is permitted).

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demonstrate that Opposer’s Section 2(d) claim is barred by laches, estoppel,
acquiescence and waiver. Opposer disputes these defenses.
Equitable defenses such as laches, estoppel, acquiescence and waiver, even when
supported by the evidence, are not automatic bars. It is well settled that such
equitable defenses will not defeat a Section 2(d) claim where consumer confusion is
inevitable, due to the overriding concern of the Trademark Act with the public
interest. See, e.g., RLP Ventures, LLC v. NLDA Assoc. Inc., No. 92066135, 2018 WL
5920950, at *12 n. 14 (TTAB 2018) (laches, estoppel and unclean hands not
applicable because confusion inevitable); TPI Holdings, Inc. v. TrailerTrader.com,
LLC, No. 92064976, 2018 WL 1942229, at *9 (TTAB 2018) (even where the
affirmative defense of laches is meritorious, laches is not a bar to cancellation if
confusion is inevitable); Christian Broad. Network Inc. v. ABS-CBN Int’l, No.
92044366, 2007 WL 2253483, at *14 (TTAB 2007) (laches and acquiescence would
not preclude a judgment for plaintiff if confusion is inevitable).
“A showing of inevitable confusion requires that there be no reasonable doubt as
to likelihood of confusion. Typically, only where both the goods and marks are nearly
identical is that standard satisfied.” Brooklyn Brewery Corp. v. Brooklyn Brew Shop,
LLC, 17 F.4th 129, 143 (Fed. Cir. 2021) (citations omitted); see, e.g., Metro Traffic
Control, Inc. v. Shadow Network Inc., 104 F.3d 336, 339 (Fed. Cir. 1997) (affirming
Board finding that confusion was “so likely that it is virtually inevitable, because the
parties are using the identical mark for the identical services”) (internal citation
omitted).

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In this case, there is no reasonable doubt as to likelihood of confusion. The marks
and services are identical. On top of that, as noted, Applicant admits the marks and
services are identical and that there is a likelihood of confusion between the parties’
marks.46 Based on this record, confusion is not only likely, it is inevitable and thus,
Applicant’s defenses of laches, estoppel, acquiescence and waiver fail.
V. Summary and Decision
In summary, Opposer has established its entitlement to oppose and its prior
common law trademark use of LITTLE ANITA’S for restaurant services. Because
the marks and services are identical, the first and second DuPont factors weigh
heavily in favor of a likelihood confusion and the third and fourth factors weigh in
favor of a likelihood of confusion. The fifth through seventh factors are neutral.
There are no factors that weigh against a likelihood of confusion. Not only do we
conclude that there is a likelihood of confusion, because the marks and services are
identical, we find confusion is inevitable. Applicant’s affirmative defenses of laches,
estoppel, acquiescence and waiver therefore fail.
Decision: The opposition is sustained.
46 Answer, 4 TTABVUE 4, ¶6.