Zen Cafe Corp

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: October 7, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Zen Cafe Corp1
_____
Serial No. 99185689
_____
Michael Barrows of Barrows Levy PLLC,
for Zen Cafe Corp.
Mackenzie Olson, Trademark Examining Attorney, Law Office 112,
Matthew Cuccias, Managing Attorney.
_____
Before Lykos, Elgin, and Stanley, Administrative Trademark Judges.
Opinion by Elgin, Administrative Trademark Judge:
Applicant Zen Cafe Corp seeks registration on the Principal Register of the
standard-character mark ZEN WAFFLES (WAFFLES disclaimed) for goods
ultimately identified as “Waffles; Filled waffles; Frozen waffles; Waffle mixes; Protien
[sic]-enriched waffles” in International Class 30.2
1 Applicant is listed in the application and TTABVUE as “Zen Cafe Corp”; but Applicant is
identified in the appeal brief as “Zen Café Corp.” We refer to Applicant by the name stated
in the application.
2 Serial No. 99185689 was filed on May 14, 2025 under Trademark Act Section 1(a), 15 U.S.C.
§ 1051(a), based on Applicant’s claimed first use of the mark and first use of the mark in
commerce at least as early as November 15, 2024. We presume the word “protein” has been
misspelled in the amended identification.

Serial No. 99185689
- 2 -
The Trademark Examining Attorney refused registration under Trademark Act
Section 2(d), 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used in
connection with the identified goods, so resembles the registered marks
(BAKERY disclaimed) for “muffins, cookies, rolls, pastry” in
International Class 303 and ZEN BAKERY (BAKERY disclaimed) in standard
characters for “bakery goods; muffins, cookies, rolls, pastry; bakery goods for retail
and wholesale distribution and consumption on or off the premises” in International
Class 304 that it is likely to cause confusion, to cause mistake, or to deceive.
After the refusal was made final, Applicant appealed. The Examining Attorney
and Applicant have filed briefs.5 For the reasons set forth below, we affirm the
refusal to register.
I. Evidentiary Issues
Before proceeding with an analysis of the refusal, we address several evidentiary
objections made by the Examining Attorney.
First, Applicant referred to third-party ZEN-formative marks in a response to an
Office Action, as well as in its brief.6 Applicant did not refer to any registration or
3 Registration No. 1529901 issued on the Principal Register on March 14, 1989; renewed.
4 Registration No. 4104964 issued on the Principal Register on February 28, 2012; renewed.
5 Applicant’s brief is at 4 TTABVUE. The Examining Attorney’s brief is at 6 TTABVUE.
Citations to the prosecution record refer to the USPTO Trademark Status and Document
Retrieval system (TSDR) in the downloadable .pdf format by page number. References to the
briefs on appeal refer to the Board’s TTABVUE docket system. In re Integra Biosciences Corp.,
No. 87484450, 2022 TTAB LEXIS 17, at *6.
6 See December 21, 2025 Response to Office Action at TSDR 6-7; 4 TTABVUE 8-9.

Serial No. 99185689
- 3 -
application numbers in its response, and copies of the TSDR records were not
properly introduced into the record. See In re ZeroSix, LLC, No. 88981832, 2023
TTAB LEXIS 209, at *1 (“[M]erely listing third-party registrations does not make
them of record.”); In re Jump Designs, LLC, No. 76393986, 2006 TTAB LEXIS 209,
at *6 (“To make a third-party registration of record, a copy of the registration, either
a copy of the paper USPTO record, or a copy taken from the electronic records of the
Office, should be submitted.”).
The Examining Attorney notified Applicant in the Final Office Action that the
applications and registrations were not of record and objected to the arguments based
on the missing evidence.7 The Examining Attorney maintained the objection in the
Examining Attorney’s brief.8 Cf. In re City of Houston, No. 77660948, 2012 TTAB
LEXIS 1, at *3 (considering a list of registrations because the examining attorney
failed to advise applicant of the insufficiency of the list of registrations when it was
proffered during examination and therefore waived the objection). The Board does
not take judicial notice of the files of applications or registrations residing in the
Office. In re House Beer, LLC, No. 85684754, 2015 TTAB LEXIS 66, at *3.9
7 February 2, 2026 Final Office Action at TSDR 5.
8 6 TTABVUE 3-4. Applicant added application serial numbers relating to the underlying
applications in its appeal brief (e.g. “ZEN (Class 30 supplements, Serial Number 98397412)”).
4 TTABVUE 8.
9 In addition, because Applicant only offered serial numbers and abbreviated goods in its
brief, we would not be able to tell from the limited information provided whether the cited
marks are registered, the full breadth of the goods or services, and whether they are owned
by related parties.

Serial No. 99185689
- 4 -
Accordingly, the Examining Attorney’s objection to Applicant’s reliance on third-
party ZEN-formative marks is sustained.
Similarly, the Examining Attorney objects to Applicant’s argument reciting
“numeric summaries of applicant’s search queries entered into the USPTO database,
without supporting evidence properly made of record.”10 Applicant’s statements
regarding the results of a search of USPTO records is purely attorney argument, and
it was submitted for the first time during this appeal with no supporting evidence.
Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005) (“Attorney
argument is not evidence.”). This objection to the results of the search queries also is
sustained.
Finally, the Examining Attorney argues that Applicant did not re-assert an
argument presented during the prosecution phase regarding a prior nonprecedential
decision where the Board found that the marks ZEN BAKERY (including the cited
mark) and ZEN DELITES for “cookies” were not sufficiently similar to be likely to
cause confusion.11 The Examining Attorney requests that we find the argument
waived.12 We agree that the argument has been waived. See, e.g., In re Black Card
LLC, No. 90641690, 2023 TTAB LEXIS 478, at *29 (applicant that did not address
identification of services issue in its appeal brief waived ability to contest the refusal
based on that ground). In any event, each case presents different facts and must be
10 6 TTABVUE 4 (citing to 4 TTABVUE 7).
11 Id. at 5; See December 21, 2025 Response to Office Action at TSDR 14, 20-34 (discussing
Drake Revocable Trust v. Defuria, No. 92059646, 2016 TTAB LEXIS 191, at *1).
12 6 TTABVUE 5.

Serial No. 99185689
- 5 -
decided on its own merits. See In re Davey Prods. Pty, No. 77029776, 2009 TTAB
LEXIS 524, at *28; see also In re Nett Designs, Inc., 236 F.3d 1339, 1342 (Fed. Cir.
2001) (“Even if some prior registrations had some characteristics similar to Nett
Designs’ application, the PTO’s allowance of such prior registrations does not bind
the Board or this court.”).
II. Likelihood of Confusion Analysis
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d); see also In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023).
Our determination under Section 2(d) is based on an analysis of all the probative
evidence of record bearing on a likelihood of confusion. In re E. I. DuPont 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 any likelihood of confusion analysis, different DuPont factors may play a
dominant role, and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (citing Tiger Lily Ventures Ltd. v. Barclays Cap.
Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). Although we consider each DuPont factor
for which there is evidence and argument, In re Guild Mortg. Co., 912 F.3d 1376, 1379
(Fed. Cir. 2019), two key considerations are the similarities between the marks and
the similarities between the goods. In re i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed.
Cir. 2017) (citing Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed.

Serial No. 99185689
- 6 -
Cir. 2002)). In addition, varying weight may be assigned to each factor depending on
the evidence presented, and “any one of the factors may control a particular case.”
Id.; see also Charger Ventures, 64 F.4th at 1381. In cases where we find some factor
or factors relatively more important, we weigh or balance them more heavily in the
final step of assessing the factors to determine whether confusion is likely.
For purposes of our likelihood of confusion analysis, we focus on Registration No.
4104964 for the standard-character mark ZEN BAKERY, for “bakery goods; muffins,
cookies, rolls, pastry; bakery goods for retail and wholesale distribution and
consumption on or off the premises.” That registration is closest to Applicant’s mark
and goods because standard character registrations cover any typeface, see, e.g.,
SquirtCo v. Tomy Corp., 697 F.2d 1038, 1041 (Fed. Cir. 1983), and because it
identifies a broader set of goods. If confusion is likely between Applicant’s mark and
this mark, there is no need for us to consider likelihood of confusion with the stylized
mark for narrower goods in Registration No. 1529901. See In re Max Cap. Grp., No.
77186166, 2010 TTAB LEXIS 1, at *4-5. Conversely, if there is no likelihood of
confusion between Applicant’s mark and the standard-character mark, then there
would be no likelihood of confusion with the other cited mark. Accordingly, we refer
to Registration No. 4104964 as the “cited registration” or “cited mark” in this decision.
We address the DuPont factors in the order set forth by Applicant in its brief, as
that seems to emphasize the importance Applicant placed on each factor.

Serial No. 99185689
- 7 -
A. Weakness of the Cited Mark
We begin with an analysis of the sixth DuPont factor, which “allows Applicant to
contract th[e] scope of protection by adducing evidence of ‘[t]he number and nature of
similar marks in use on similar goods.’” Made in Nature, LLC v. Pharmavite LLC,
No. 91223352, 2022 TTAB LEXIS 251, at *24 (quoting DuPont, 476 F.2d at 1361). A
determination of the strength or weakness of the cited marks helps inform us as to
their scope of protection. See In re Morinaga Nyugyo K.K., No. 86338392, 2016 TTAB
LEXIS 448, at *17-18 (“[T]he strength of the cited mark is – as always – relevant to
assessing the likelihood of confusion under the du Pont framework.”).13
When evaluating the strength or weakness of a mark, we look at the mark’s
inherent conceptual strength based on the nature of the term itself and its
commercial strength in the marketplace. See Spireon, Inc. v. Flex LTD, 71 F.4th 1355,
1362 (Fed. Cir. 2023) (“There are two prongs of analysis for a mark’s strength under
the sixth factor: conceptual strength and commercial strength.”); In re Chippendales
USA, Inc., 622 F.3d 1346, 1353-54 (Fed. Cir. 2010) (measuring both conceptual and
marketplace strength); Made in Nature, 2022 TTAB LEXIS 251, at *24.
Conceptual strength is a measure of the cited mark’s distinctiveness. A mark may
be placed “in categories of generally increasing distinctiveness: … (1) generic;
(2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos, Inc. v. Taco
Cabana, Inc., 505 U.S. 763, 768 (1992). The last three categories are considered
13 Fame of the cited mark under the fifth factor is considered neutral in an ex parte appeal.
See In re Thomas, No. 78334625, 2006 TTAB LEXIS 135, at *18 n.11.

Serial No. 99185689
- 8 -
inherently distinctive. “Where, as here, [a] mark is registered without a Section 2(f)
claim of acquired distinctiveness, the mark is presumed to be inherently distinctive,”
that is, at least suggestive. Brooklyn Brewery Corp. v. Brooklyn Brew Shop, LLC, 17
F.4th 129, 146 (Fed. Cir. 2021); see also Heil Co. v. Tripleye GmbH, No. 91277359,
2024 TTAB LEXIS 494, at *48-49 (where a mark “is registered on the Principal
Register, with no claim of acquired distinctiveness under Section 2(f), we presume it
is inherently distinctive, i.e., that it is at worst suggestive of the goods”) (citing
Trademark Act Section 7(b), 15 U.S.C. § 1057(b)). This means that the cited mark
ZEN BAKERY (BAKERY disclaimed), in its entirety, is presumptively entitled to at
least “the normal scope of protection to which inherently distinctive marks are
entitled.” Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No. 91270181, 2024
TTAB LEXIS 139, at *27 (quoting Bell’s Brewery, Inc. v. Innovation Brewing, No.
91215896, 2017 TTAB LEXIS 452, at *20).
Nonetheless, we may consider whether components of the cited mark lack
distinctiveness or are weak. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943,
947 (Fed. Cir. 2000) (a “descriptive component of a mark may be given little weight
in reaching a conclusion on likelihood of confusion.”) (quoting In re Nat’l Data Corp.,
753 F.2d 1056, 1058 (Fed. Cir. 1985)). BAKERY is disclaimed as highly descriptive or
generic of the bakery goods identified in the registrations. Applicant asserts that the
term ZEN in the cited mark is conceptually weak, such that the applied-for marks
may co-exist on the register.14 Applicant states that “[d]ictionary definitions establish
14 4 TTABVUE 9 (Applicant’s Brief).

Serial No. 99185689
- 9 -
that the term refers to calmness, mindfulness, and wellness, concepts that are
routinely used in food and lifestyle branding. Terms that merely convey a desirable
quality or lifestyle association are inherently weak as trademarks.”15
But (as the Examining Attorney points out),16 Applicant did not offer any
dictionary evidence to support this argument, and attorney argument is not evidence.
Enzo Biochem, 424 F.3d at 1284. In any event, ZEN is not descriptive of the bakery
goods identified in the cited registration. As the Examining Attorney argues, “[p]eople
do not tend to seek out waffles and baked goods in a search for peace or calmness;
consumers seek out waffles and baked goods because they are hungry.”17
Applicant also argues the cited mark is commercially weak because: “The
marketplace is saturated with ZEN-formative marks for tea, matcha, spices, noodles,
packaged foods, beverages, cafes, and restaurants,” and “[t]he term ZEN is also used
in connection with many other food and wellness-themed products.”18 But as we found
above, Applicant did not support this argument with any admissible evidence.19
15 Id. (citing In re FabFitFun, Inc., No. 86847381, 2018 TTAB LEXIS 297).
16 6 TTABVUE 12 (Examiner’s Brief).
17 Id. at 12.
18 4 TTABVUE 8 (Applicant’s Brief).
19 See supra Section I.

Serial No. 99185689
- 10 -
The record also is devoid of any evidence showing third-party marketplace use of the
term ZEN as a mark or an element of a mark.
Accordingly, the sixth DuPont factor is neutral, and we accord the mark the scope
of protection due an inherently distinctive mark.
B. The Marks
We next compare the marks. Under the first DuPont factor, “we consider the
‘similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression.’” In re Ye Mystic Krewe of Gasparilla,
No. 90522364, 2025 TTAB LEXIS 412, at *9 (quoting DuPont, 476 F.2d at 1361).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s LLC, No. 87075988, 2018 TTAB
LEXIS 170, at *13 (citation omitted), aff’d per curiam, 777 F. App’x 516 (Fed. Cir.
2019); accord 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.”) (citation omitted).
“[S]imilarity is not a binary factor but is a matter of degree.” In re St. Helena
Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting In re Coors Brewing Co., 343 F.3d
1340, 1344 (Fed. Cir. 2003)). The proper test regarding similarity “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.” Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 1373 (Fed. Cir. 2018) (quoting Coach Servs. v. Triumph Learning

Serial No. 99185689
- 11 -
LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)). “The focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of trademarks.” In re St. Julian Wine Co., No. 87834973, 2020 TTAB LEXIS 196,
at *13.
Applicant’s mark is ZEN WAFFLES, and the cited mark is ZEN BAKERY, both
in standard characters. Applicant rests on its rejected argument above that the
“shared term is weak” and argues that “it is the additional wording [WAFFLES and
BAKERY] that dominates the commercial impression of the mark.”20 In particular,
Applicant contends WAFFLES “identifies a specific, discrete food product, typically
understood as a breakfast item. In contrast, ‘BAKERY’ refers to a broad category of
goods or a retail establishment offering a variety of baked items such as pastries,
muffins, and breads.”21 Thus, argues Applicant, “differences in meaning and
connotation can outweigh similarities in sound or appearance.”22 In addition,
Applicant maintains that “ZEN WAFFLES conveys a modern, product-specific brand
focused on a particular type of food, while ZEN BAKERY conveys a traditional bakery
business offering a range of baked goods. The marks therefore create distinct
commercial impressions that consumers would not confuse.”23
20 4 TTABVUE 10 (Applicant’s Brief).
21 Id.
22 Id. (citing Blue Man Prods., Inc. v. Tarmann, No. 91154055, 2005 TTAB LEXIS
338 (subsequent history omitted); In re Sears, Roebuck & Co., No. 502919, 1987 TTAB LEXIS
84)).
23 Id. at 10-11.

Serial No. 99185689
- 12 -
The Examining Attorney counters that both marks share the leading and
dominant term ZEN, followed by disclaimed wording which contributes less to the
commercial impression of the marks.24 In response to Applicant’s connotation
argument, the Examining Attorney argues “a waffle is a baked good, and the
connotations of the words are rather similar.”25 Further, unlike the caselaw relied
upon by Applicant concerning different goods, “consumers are likely to think they can
get ZEN WAFFLES from the same source that sells ZEN BAKERY baked goods.”26
The Examining Attorney also points to the fact that both marks are in standard
characters and may be displayed similarly.27
Both the cited mark ZEN BAKERY and Applicant’s mark ZEN WAFFLES begin
with ZEN, creating strong visual and aural similarities between the marks. The
marks differ in appearance and sound only by virtue of their other descriptive, if not
generic, terms, which are BAKERY and WAFFLES, respectively. But because
consumers are generally pre-conditioned to focus on the first word in any trademark,
the shared term is particularly meaningful. See In re Detroit Athletic Co., 903 F.3d
1297, 1303 (Fed. Cir. 2018) (“The identity of the marks’ initial two words is
particularly significant because consumers typically notice those words first.”); Palm
24 6 TTABVUE 8, 9-10 (Examining Attorney’s Brief).
25 Id.
26 Id. at 9.
27 Id. at 10-11.

Serial No. 99185689
- 13 -
Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
1372-73 (Fed. Cir. 2005).
This is especially true where, as here, the additional terms in both marks have
little source-identifying significance. In re Chatam Int’l, 380 F.3d 1340, 1343 (Fed.
Cir. 2004) (“Because ALE has nominal commercial significance, the Board properly
accorded the term less weight in assessing the similarity of the marks
under DuPont”); In re Dixie Rests., 105 F.3d 1405, 1407 (Fed. Cir. 1997) (disclaimed
or descriptive terms are generally considered less significant features of a mark).
Moreover, the Board has acknowledged the “penchant of consumers to shorten
marks.” Iron Balls Int’l Ltd. v. Bull Creek Brewing, LLC, No. 92079099, 2024 TTAB
LEXIS 205, at *65 (citation omitted); see also In re Abcor Dev. Corp., 588 F.2d 811,
815 (CCPA 1978) (Rich, J., concurring) (“the users of language have a universal habit
of shortening full names from haste or laziness or just economy of words.”). The
shared distinctive term ZEN, therefore, is the dominant element in both marks and
results in similar appearance and sound.
Also, with respect to appearance, both marks are in standard characters, and thus
both “may be presented in any font style, size or color, including the same font, size
and color,” including “one that minimizes the differences or emphasizes the
similarities between the marks.” Sabhnani v. Mirage Brands, LLC, No. 92068086,
2021 TTAB LEXIS 464, *43-44 (cleaned up; citations omitted); see also Citigroup Inc.
v. Cap. City Bank Grp., 637 F.3d 1344, 1353 (Fed. Cir. 2011) (the “registrant is
entitled to depictions of the standard character mark regardless of font style, size, or

Serial No. 99185689
- 14 -
color, not merely ‘reasonable manners’ of depicting its standard character mark.”).
As to connotation, Applicant’s arguments that consumers would view ZEN
WAFFLES as a relating to a “specific, discrete” food item and “modern,” as opposed
to a ZEN BAKERY as relating to a “range” of foods and more “traditional” are not
well taken or supported by evidence. The far more dominant term is the distinctive
ZEN, and waffles and bakery products and pastries are not so different that they
impart starkly different connotations to consumers.
We find that the marks ZEN BAKERY and ZEN WAFFLES, considered in their
entireties, are similar in sight, sound, meaning, and overall commercial impression.
Accordingly, the first DuPont factor favors a finding of likelihood of confusion.
C. The Goods
The second DuPont factor “considers the similarity or dissimilarity and nature of
the goods as described in the involved application and cited registration … and
contemplates whether the consuming public may perceive the respective goods as
related enough to cause confusion about their source or origin.” In re Samsung
Display Co., No. 90502617, 2024 TTAB LEXIS 258, at *6 (citations omitted).
“We begin with the identifications of … [goods] in the registration and application
under consideration” which may, in some cases, show on their face that they are
literally or legally identical, or otherwise intrinsically related. In re OSF Healthcare
Sys., No. 88706809, 2023 TTAB LEXIS 353, at *9-10 (citation omitted). Applicant’s
goods are “Waffles; Filled waffles; Frozen waffles; Waffle mixes; Protien [sic]-enriched
waffles” and the goods in the cited registration are “bakery goods; muffins, cookies,

Serial No. 99185689
- 15 -
rolls, pastry; bakery goods for retail and wholesale distribution and consumption on
or off the premises.”
The Examining Attorney argues that the goods are legally identical by virtue of
the identifications themselves – that is, that “bakery goods” and “pastry” encompass
all goods of the type described, including applicant’s more narrow identification for
waffles.28 But we find little evidence in the record that waffles, which are made in a
waffle iron, are commonly considered a “bakery product” or a “pastry.”29
However, it is well-settled that the goods do not have to be identical or even
competitive to find a likelihood of confusion. On-line Careline, Inc. v. Am. Online, Inc.,
229 F.3d 1080, 1086 (Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329 (Fed.
Cir. 2000). The goods of the applicant and the registrant need only be related in some
manner and/or the circumstances surrounding their marketing are such that they
could give rise to the mistaken belief that they emanate from the same source. Coach
Servs., 668 F.3d at 1369. It also is sufficient for likelihood of confusion if relatedness
is established for any item encompassed by the recitation of goods or services within
a particular class in the application. See, e.g., Tuxedo Monopoly, Inc. v. Gen. Mills
Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981).
28 See 6 TTABVUE 13.
29 See, e.g., MERRIAM-WEBSTER DICTIONARY (defining pastry as: “a dough that is used to make
pies and other baked goods and typically has a high fat content” and “usually sweet baked
goods made of dough having a high fat content”) (www.merriam-
webster.com/dictionary/pastry, accessed October 7, 2026); Id. (defining “waffle” as “a crisp
cake of batter baked in a waffle iron”) (www.merriam-webster.com/dictionary/waffle,
accessed October 7, 2026). The Board may take judicial notice of dictionary definitions,
including online dictionaries that exist in printed format or regular fixed editions. In re
Leathernecks Motorcycle Club Int’l, Inc., No. 90498154, 2024 TTAB LEXIS 208, at *14 n.6.

Serial No. 99185689
- 16 -
The Examining Attorney offered two categories of third-party evidence to
demonstrate that the goods in the application and cited registration (e.g. bakery
products, pastries, waffles, waffle mixes) are related.
First, the record contains evidence of twelve third-party use-based registrations
that identify goods in both the cited registration and application, including:30
• BOWL & BASKET (Reg. No. 705556) for bakery goods and waffles;
• G4G GRAIN4GRAIN (Reg. No. 5825134) bread and pastry, cookies,
muffins, pastries; and waffles, frozen flour-free foods (namely waffles
which are protein-enriched);
• PASTA ZING (Reg. No. 6630017) for pastry, pastries with fruit, rolls,
bakery goods and dessert items (namely cakes, cookies, pastries); frozen
flour-free foods (namely waffles which are protein-enriched);
• 9 SISTERS GOORMÁ (Reg. No. 7031289) for bakery goods, baked
goods (namely cookies, pastries, muffins, cinnamon rolls), bakery
desserts; and waffles.
• OUTER LIMIT DOUGHNUTS (Reg. No. 6222802) for bakery goods
and dessert items (namely cookies, pastries); and waffles, frozen flour-
free foods (namely waffles which are protein-enriched).
• BIRCH BENDERS (Reg. No. 7170174) for baked goods (namely
cookies, muffins), pastries; and waffles, frozen waffles, waffle mixes;
• QUIKCAKES (Reg. No. 7324170) for muffins, cookies, pastries; and
frozen waffles, waffles;
• WINTER PLUM CAKERY (Reg. No. 7980592) for cookies, muffins,
pastries, bakery goods and dessert items, rolls; and frozen flour-free
foods (namely waffles which are protein-enriched);
• TRADER JOE’S (Reg. No. 2156879) for bakery goods, bread rolls,
cookies, danish pastries, muffins, pastries; and waffles
• KOJEL (Reg. No. 5003772) for bakery products; bakery goods; pastry;
cinnamon rolls, cookies, pastries; and dough mixes for waffles.
30 February 2, 2026 Final Office Action at TSDR 41-70.

Serial No. 99185689
- 17 -
• APLA and design (Reg. No. 6471209) for bakery goods, pastries,
cookies, muffins, cinnamon rolls, danish pastries, bakery goods, baked
bakery desserts, frozen pastries; and waffles; and
• B & CO. EST. 2021 and design (Reg. No. 8079300) for bakery goods,
muffins, cookies, pastries, cinnamon rolls; and waffles.
These third-party registrations covering goods from both the cited registration
and Applicant’s application are relevant to show that the goods are of a type that may
emanate from a single source under one mark. See In re Country Oven, Inc., No.
87354443, 2019 TTAB LEXIS 381, at *9-10.
Second, the record evidence confirms that third parties sell the goods of both
Registrant and Applicant under the same mark:31
• St. Pierre – croissants, buns and rolls, and waffles;
• Bedrock Bakers – bagels, English muffins, and waffles;
• Wolferman’s Bakery – pastries and baked goods (including
muffins, cookies, rolls), and waffles;
• Oakmont Bakery – pastries (including muffins), bakery rolls, and
waffles;
• Thoms Bread – bakery products (including muffins) and waffles;
and
• Blue Moon Bakery – gluten free bakery products (including
cookies, muffins); and waffle mix.
Evidence showing goods emanating from the same source under the same mark is
relevant evidence of relatedness. See, e.g., Hewlett-Packard Co. v. Packard Press, Inc.,
281 F.3d 1261, 1267 (Fed. Cir. 2002) (“[W]hether single company sells the goods and
services of both parties … is relevant to a relatedness analysis[.]”); In re Embiid, No.
31 Id. at TSDR 9-40.

Serial No. 99185689
- 18 -
88202890, 2021 TTAB LEXIS 168, at *39 (evidence of third parties offering goods of
both applicant and registrant pertinent to relatedness of the goods).
Applicant does not address the Examining Attorney’s evidence, instead arguing
that the Board should consider actual differences between the goods:
The record establishes that Applicant and Registrant
operate in fundamentally different market segments.
Applicant offers protein-enriched waffles that are
marketed as functional, health-oriented breakfast
products. These goods are packaged, nutritionally
formulated, and sold primarily through direct-to-consumer
e-commerce channels targeting fitness-conscious
consumers.
By contrast, Registrant operates as a traditional bakery
offering fresh baked goods, muffins, cookies, and pastries,
distributed through wholesale grocery channels.
Registrant does not offer waffles of any kind.
These differences extend beyond product type to include
formulation, purpose, storage, packaging, and consumer
expectations. A consumer seeking a high-protein, packaged
waffle product would not perceive that product as
emanating from the same source as a traditional bakery
offering fresh pastries.32
Applicant’s argument based on actual products (i.e. pre-packaged, health-oriented
versus traditional bakery offering fresh pastries) is not persuasive because we
analyze the DuPont factors based on the identifications present in the application
and registration. We cannot read limitations into identifications of goods based on
either argument or evidence of actual use. See, e.g., Embiid, 2021 TTAB LEXIS 168,
at *37-38 (Board may not import restrictions into identification based on real-
world conditions); In re Bercut-Vandervoort & Co., No. 73448806, 1986 TTAB LEXIS
32 4 TTABVUE 11 (Applicant’s Brief).

Serial No. 99185689
- 19 -
124, at *5-6 (applicant may not restrict the scope of the goods identified in the
application or cited registration by argument or extrinsic evidence showing what
those goods are). The identifications in the application and cited registration are not
limited; thus, we must consider all types of the identified goods, including all waffles,
and both fresh and pre-packaged bakery products and pastries.
The Examining Attorney’s third-party registration and use evidence is persuasive
and uncontroverted. In view of the foregoing, we find that the goods identified in the
application are related to the goods identified in the cited registration. See, e.g., In re
C.H. Hanson Co., No. 77983232, 2015 TTAB LEXIS 357, at *17 (six websites showing
sale of the subject goods, coupled with five third-party registrations of marks for
them, “support the conclusion that the goods are related”). The second DuPont factor
favors a finding of likelihood of confusion.
D. Channels of Trade and Conditions of Purchase
The third DuPont factor concerns the “similarity or dissimilarity of established,
likely-to-continue trade channels.” Samsung Display, 2024 TTAB LEXIS 258, at *17
(quoting DuPont, 476 F.2d at 1361). The fourth DuPont factor concerns the conditions
under which the goods are likely to be purchased, e.g., whether on impulse or after
careful consideration. DuPont, 476 F.2d at 1361.
The Examining Attorney argues that the same record evidence relied upon to show
relatedness of the goods above (i.e., third-party registrations and use) also
demonstrates “that the general type of goods identified in the application and
registrations are … marketed/sold to the same consumers through the same trade

Serial No. 99185689
- 20 -
channels.”33 In addition, the record evidence shows that goods are “low-cost, every-
day consumer items [which] are generally more likely to be confused as to the source
of the goods.”34
Applicant responds that its goods are “marketed through modern e-commerce
platforms and wellness-focused channels, while Registrant’s goods are encountered
in bakery sections of grocery stores.”35 Further, Applicant contends its products are
“marketed to health-conscious consumers who are attentive to nutritional content
and willing to pay premium prices. Such consumers exercise a higher degree of care
in their purchasing decisions, further reducing any likelihood of confusion.”36
Neither the cited registration nor the application contains any limitations on the
channels of trade or classes of purchasers. As such, Applicant’s and Registrant’s goods
presumptively move in all normal trade channels and to all consumers that purchase
such goods. See Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 719 F.3d
1367, 1373 (Fed. Cir. 2013). For this reason, the evidence of real-world trade channels
and consumers relied on by Applicant are irrelevant. Stone Lion Cap. Partners, LP v.
Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (“An application with ‘no
restriction on trade channels’ cannot be ‘narrowed by testimony that the applicant’s
use is, in fact, restricted to a particular class of purchasers.’”) (citation omitted).
33 6 TTABVUE 17.
34 Id. at 17-18.
35 4 TTABVUE 12.
36 Id.

Serial No. 99185689
- 21 -
We instead look to the record to ascertain the normal trade channels and
consumers for bakery goods, pastries, and waffles. The record shows that these are
general consumer goods sold through the same online and brick and mortar retail
stores.37 The Examining Attorney also made of record evidence showing that, despite
Applicant’s arguments to the contrary, “some of registrant’s good [sic] are ALSO
packaged and sold as wellness foods that appeal to health conscious consumers.”38
Additionally, the evidence shows that bakery goods and pastries may be pre-packaged
and sold via the Internet,39 and waffles may be sold fresh.40 The goods may be
encountered in the same retail outlets by the same consumers, and thus the channels
of trade overlap.
Further, the record shows that bakery goods, pastries, and waffles are low-cost
food items.41 “When products are relatively low-priced and subject to impulse buying,
the likelihood of confusion is increased because purchasers of such products are held
to a lesser standard of purchasing care.” Recot, 214 F.3d at 1329; accord Palm Bay,
396 F.3d at 1376.
We find that the third and fourth DuPont factors favor a finding of likelihood of
confusion.
37 February 2, 2026 Final Office Action at TSDR 9-36.
38 6 TTABVUE 16 (citing February 2, 2026 Final Office Action at TSDR 71-74) (“Zen Bakery
Blueberry Oat Energy Bar” and “Zen Bakery Apple Cranberry Fiber Cake”).
39 February 2, 2026 Final Office Action at TSDR 17-18 (Bedrock Bakers), 19-22 (Wolferman’s
Bakery), 71-74 (Zen Bakery).
40 Id. at TSDR 35-36 (Oakmont Bakery).
41 Id. at TSDR 15-28, 35-40 (Bedrock Bakers, Wolferman’s Bakery, Oakmont Bakery, Blue
Moon Bakery).

Serial No. 99185689
- 22 -
E. Lack of Actual Confusion
Applicant argues, relevant to the seventh and eighth DuPont factors, that “the
absence of actual confusion, despite concurrent marketplace presence, provides
further support for reversal. Both parties’ marks have been used in commerce,
including through online channels, providing ample opportunity for confusion to arise
if it were likely. Yet there is no evidence of any actual confusion.”42
The seventh DuPont factor requires us to consider evidence pertaining to “the
nature and extent of any actual confusion,” while the eighth factor requires us to
consider evidence pertaining to “the length of time during and conditions under which
there has been concurrent use without evidence of actual confusion.” DuPont, 476
F.2d at 1361.
An appeal of a refusal to register a mark is an ex parte proceeding. That means
the owner of the cited registration is not a party and we simply cannot know whether
the Registrant has evidence of actual confusion. Majestic Distilling, 315 F.3d at
1317 (“uncorroborated statements of no known instances of actual confusion are of
little evidentiary value” in an ex parte appeal). In addition, Applicant failed to make
any evidence of record to show there has been a significant opportunity for actual
confusion to have occurred; that is, the kind of marketplace circumstances that can
lead to actual confusion. Cf. Guild Mortg., 912 F.3d at 1380-81 (suggesting that
evidence of concurrent use of the two marks for a particularly long period of time (40
42 4 TTABVUE 12.

Serial No. 99185689
- 23 -
years) in the same geographic market without any evidence of actual confusion may
be probative under the eighth DuPont factor, even in an ex parte appeal).
For these reasons, we find the seventh and eighth DuPont factors neutral.
III. Balancing the Factors on Likelihood of Confusion
Finally, we must weigh and balance the findings we have made on the DuPont
factors for which there has been evidence and argument in this appeal. Charger
Ventures, 64 F.4th at 1381 (“[I]t is important ... that the Board ... weigh the DuPont
factors used in its analysis and explain the results of that weighing.”).
In this case, the first and second DuPont factors – which we consider most
important – weigh in favor of likelihood of confusion given the similarity of the marks
and similarity of the goods. i.am.symbolic, 866 F.3d at 1322. The third and fourth
factors also weigh in favor of likelihood of confusion. The fifth, sixth, seventh, and
eighth factors are neutral on this record. No factors weigh against likelihood of
confusion. We conclude that confusion is likely.
Decision
The refusal to register application Serial No. 99185689 is affirmed under
Trademark Act Section 2(d).