O&R Franchise Group LLC

Mailed: December 30, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re O&R Franchise Group LLC
————
Serial No. 98134084
————
Laura Beléndez Ferrero of Beléndez Law Offices,
for O&R Franchise Group LLC.
Joey Zawacki, Trademark Examining Attorney,
Susan Hayash, Managing Attorney, Law Office 123.
————
Before Wellington, English, and Casagrande,
Administrative Trademark Judges.
Opinion by Wellington, Administrative Trademark Judge:
O&R Franchise Group LLC (“Applicant”) seeks registration on the Principal
Register of the mark:
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 98134084
2
for “providing of food and drink via a mobile truck; restaurant services,” in
International Class 43.1 The word MARGARITAS has been disclaimed. The
application also contains the following translation statement: “The English
translation of LA PACHANGA MARGARITAS Y FIESTA in the mark is THE PARTY
MARGARITAS AND PARTY.”
The Trademark Examining Attorney refused registration of Applicant’s mark
under Trademark Act (“the Act”) Section 2(d), 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion based on the registered mark PACHANGA MEXICAN GRILL
(in standard characters with a disclaimer of MEXICAN GRILL) for “restaurant
services,” in Class 43.2 The registration also contains the following translation
statement: “The English translation of PACHANGA is ‘lively party.’”
After the Examining Attorney made the refusal final, Applicant requested
reconsideration and filed an appeal. The Examining Attorney denied the request for
reconsideration and the appeal resumed. Both Applicant and the Examining Attorney
filed briefs. For the reasons explained below, we affirm the refusal.
1 Application Serial No. 98134084, filed August 15, 2023, based on Applicant’s allegation of
first use of the mark anywhere and in commerce on July 16, 2021, under Trademark Act
Section 1(a), 15 U.S.C. § 1051(a).
The mark is described in the application as “consist[ing] of the following: a drawing of a
stylized donkey’s head with white eyes and black pupils, fur of alternating ruffles in the colors
orange, light orange, green, pink, light blue and blue, a pink tongue sticking out and white
teeth with a black mouth. The words ‘LA PACHANGA’ in stylized black characters appear to
the right of the donkey and the wording ‘MARGARITAS Y FIESTA’ in black appears below
the words ‘LA PACHANGA’. The donkey head and its features are outlined in black. The
colors are claimed as a feature of the mark.”
2 Registration No. 2873389 issued on the Principal Register on August 17, 2004; twice
renewed.

Serial No. 98134084
3
I. Applicant’s Proposed Amendment to Recitation of Services
As a preliminary matter, we address Applicant’s proposed amendment to the
application’s recitation of services, raised for the first time in Applicant’s appeal brief
and without a request to remand.3 Applicant seeks to have the amendment entered
“should the Board find the current identification of goods contributes to a likelihood
of confusion.”4
Applicant’s proposed amendment should have been filed as a separate document
with a request to remand to the Examining Attorney for consideration, not “in the
alternative” at the end of its appeal brief. See TRADEMARK TRIAL AND APPEAL BOARD
MANUAL OF PROCEDURE (TBMP) § 1205.01(b) (2025); see also In re Hollywood Lawyers
Online, No. 85662420, 2014 TTAB LEXIS 167, at *25 (“If applicant had wanted to
have the amendment to the identification considered in the alternative, it should
have made that request during examination”); In re Major League Umpires, No.
75154506, 2001 TTAB LEXIS 515, at *2 (“If applicant had wished to amend the
identification in this manner, the proper procedure was to file a request for remand.”).
Here, even if we were to construe the request as a request for remand, we would
deny it because we do not find “good cause” for remand. Trademark Rule 2.142(d);
TBMP § 1207.02. Moreover, as explained more fully infra and in the Examining
3 6 TTABVUE 23-24. Citations in this opinion adhere to the guidance in the TBMP § 101.03.
The TTABVUE citations in this opinion refer to the Board’s docket system. The number
preceding the TTABVUE designation is the docket entry number and any numbers following
indicate the page numbers within the docket entry.
4 6 TTABVUE 23.

Serial No. 98134084
4
Attorney’s brief,5 the proposed amendment is futile because the proposed recitation
of services remains encompassed by, and thus legally identical to, Registrant’s
recitation of services.6
II. Likelihood of Confusion
Section 2(d) of the Act, in relevant part, prohibits registration of a mark that “so
resembles a mark registered in the Patent and Trademark Office … as to be likely,
when used on or in connection with the [services] of the applicant, to cause confusion.”
15 U.S.C. § 1052(d). To determine whether confusion is likely, we analyze all
probative evidence relevant to the factors set out in In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). See In re Majestic Distilling Co.,
315 F.3d 1311, 1315 (Fed. Cir. 2003).
In every Section 2(d) case, two key DuPont factors are the similarity or
dissimilarity of the marks and the relatedness of the respective goods or services,
because the “fundamental inquiry mandated by § 2(d) goes to the cumulative effect
of differences in the essential characteristics of the goods [or services] and differences
in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103
(CCPA 1976). Here, we have considered each DuPont factor that is relevant and for
5 8 TTABVUE 14-15.
6 Applicant’s proposed amended recitation of services reads:
“Providing of food and drink via a mobile truck; Restaurant services featuring live
entertainment; Restaurant services offering seated food and drink operations
primarily focused on live entertainment; Restaurant and bar services featuring a
venue for live entertainment in the nature of live performances by musicians,
groups, and DJs.”
The wording in bold designates language not contained in the original recitation of services.

Serial No. 98134084
5
which there is evidence and argument of record. See In re Guild Mortg. Co., 912 F.3d
1376, 1379 (Fed. Cir. 2019).
Varying weight may be assigned to each DuPont factor depending on the evidence
presented. See Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed.
Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 1206 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination.”). Ultimately, however, “[e]ach case must be decided on its own facts
and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d
1197, 1199 (CCPA 1973).
A. Alleged Weakness of Term PACHANGA
Before evaluating the similarity of the marks, we begin by addressing Applicant’s
assertion that the shared term in the marks, PACHANGA, is “widely used in the food
and restaurant industry” and thus “weak and entitled to very narrow scope of
protection.”7
Under the sixth DuPont factor, we consider “[t]he number and nature of similar
marks in use on similar goods [or services].” DuPont, 476 F.2d at 1361. Thus,
Applicant in this case may adduce such probative evidence and demonstrate that a
cited mark, or element thereof, has less source-identifying significance. “Evidence of
third-party use of similar marks on similar goods [or services] is relevant to show that
a mark is relatively weak and entitled to only a narrow scope of protection.” Apex
Bank v. CC Serve Corp., 156 F.4th 1230, 1235 (Fed. Cir. 2025) (quoting Palm Bay
7 6 TTABVUE 11-12.

Serial No. 98134084
6
Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondée en 1772, 396 F.3d 1369, 1373
(Fed. Cir. 2005)). “When a field is crowded with similar marks, the theory is that
customers will be more adept at distinguishing marks from each other and are less
likely to be confused by similar marks.” Id. (citing Juice Generation, Inc. v. GS Enters.
LLC, 794 F.3d 1334, 1338 (Fed. Cir. 2015)). In other words, sufficient probative
evidence of third-party use may indicate that consumers are conditioned to
distinguish between marks based on otherwise less meaningful differences between
the marks. The third-party use evidence, as well as third-party registrations, may
also show that a term has a “normally understood and well-recognized descriptive or
suggestive meaning.” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1363 (Fed. Cir. 2023)
(citations omitted; internal quotation marks omitted) and thus ‘can bear on a mark’s
conceptual strength.” Id.
In support of its weakness argument, Applicant submitted the following during
prosecution:
• 4 third-party registrations for marks incorporating the term PACHANGA for
food or beverage goods;8
• Screen captures from 7 third-party websites showing use of PACHANGA in
marks in connection with restaurant services;9
• 10 third-party registrations for marks incorporating the term PARTY in
connection with food and restaurant services.10
At the outset, we point out that PACHANGA means “a (lively) party” in Spanish
8 July 23, 2024 Response to Office Action.
9 July 23, 2024 Response to Office Action.
10 July 23, 2024 Response to Office Action.

Serial No. 98134084
7
and thus, in the context of restaurant services and to the extent that consumers are
aware of this meaning, it evokes a festive dining atmosphere. The third-party
registrations and uses for PACHANGA-formative marks confirm this suggestive
connotation in connection with restaurant services and other goods.11 The third-party
registrations for PARTY-formative marks also help corroborate this meaning.12
Nevertheless, to the extent that Applicant seeks to rely on the third-party
11 None of the third-party registrations for PACHANGA-formative marks are for restaurant
services, but cover goods, e.g., as beer, wine, and chips. When assessing the effect of third-
party marks and registrations on the strength of a cited registration, the Federal Circuit has
noted that the question generally concerns only those third-party marks that are within the
universe circumscribed by the parties’ goods or services. See, e.g., Omaha Steaks Int’l, Inc. v.
Greater Omaha Packing Co., 908 F.3d 1315, 1325 (Fed. Cir. 2018) (“[T]he real world segment
of the public is limited to the market or universe necessary to circumscribe purchasers or
users of products or services like those being offered by the parties under a common mark.
Such limits are important to the rationale underlying this factor. Only if other offerings under
the common mark are also directed to that relevant public is it reasonable to infer that they
may have become conditioned to draw fine lines between sources of related goods or services.”
(citing Nat’l Cable Tel. Ass’n v. Am. Cinema Editors, Inc., 937 F.2d 1572, 1579 (Fed. Cir.
1991)) (internal quotation marks omitted). Here, both marks are for restaurant services, so
we are concerned only with restaurant services. To consider Applicant’s citation of third-
party marks for goods such as beer, wine, chips to bear on how consumers perceive marks in
connection with restaurant services, there must be evidence that consumers view those goods
to be related or similar to restaurant services. And, as the Examining Attorney points out (at
8 TTABVUE 10-11), a finding of relatedness generally is unwarranted as between food or
drink items and restaurant services absent “something more” than the mere fact that the
food or beverage products are served in restaurants. See, e.g., In re Coors Brewing Co., 343
F.3d 1340, 1345 (Fed. Cir. 2003). That “something more” evidence is lacking in the record
here.
12 Applicant argues these are relevant because, if we apply the doctrine of foreign equivalents,
PACHANGA is “the Spanish equivalent of PARTY and [thus is] similarly weak.” 6 TTABVUE
14. “Under the doctrine of foreign equivalents, foreign words from common languages are
translated into English to determine genericness, descriptiveness, as well as similarity of
connotation in order to ascertain confusing similarity with English word marks.” Palm Bay
Imps., 396 F.3d at 1377. Applicant does not cite to any authority to support the application
of the doctrine of foreign equivalents in the manner it seeks, i.e., for purposes of using third-
party registrations containing the English equivalent of an allegedly weak foreign term. In
this case, as mentioned above, the term PACHANGA means “party” in English and we agree
that, to the extent consumers are aware of this meaning, the PARTY registrations help
corroborate the suggestive meaning of PACHANGA.

Serial No. 98134084
8
registrations for purposes of showing marketplace weakness, we point out that they
are not actually “evidence of third-party use of the registered marks in the
marketplace, for purposes of the sixth du Pont factor.” In re Davey Prods. Pty Ltd.,
No. 77029776, 2009 TTAB LEXIS 524, at *22 (citation omitted).
We are also mindful that the cited mark is registered on the Principal Register
without a claim of acquired distinctiveness and thus the non-disclaimed term
PACHANGA is inherently distinctive. Tea Bd. of India v. Republic of Tea, Inc., No.
91118587, 2006 TTAB LEXIS 330, at *62 (a “mark that is registered on the Principal
Register is entitled to all Section 7(b) [of the Act] presumptions including the
presumption that the mark is distinctive and moreover, in the absence of a Section
2(f) claim in the registration, that the mark is inherently distinctive for the goods”).
Applicant does not, indeed cannot, claim the term is descriptive as that would
constitute an impermissible attack on the cited registration. See Sage Therapeutics,
Inc. v. SageForth Psychological Servs., LLC, No. 91270181, 2024 TTAB LEXIS 139,
at *27-28 (“Applicant’s third-party evidence may be relevant to show where, within
the range of inherently distinctive marks, the SAGE CENTRAL mark belongs, but
we cannot find the mark merely descriptive given its [a Principal Register]
registration [without a claim of acquired distinctiveness].”) Nonetheless, we may
consider whether the cited mark is “weak as a source indicator” in the course of the
DuPont analysis. In re Fat Boys Water Sports LLC, No. 86490930, 2016 TTAB LEXIS
150, at *23.
In terms of marketplace or commercial weakness, when there exists extensive

Serial No. 98134084
9
evidence of third-party use of similar marks for related goods or services, this is
generally probative in terms of demonstrating such weakness. See, e.g., Jack Wolfskin
Ausrustung Fur Draussen GmbH v. New Millennium Sports, S.L.U., 797 F.3d 1363,
1374 (Fed. Cir. 2015); Juice Generation, 794 F.3d at 1339. Here, however, Applicant’s
submission of screen captures from 7 third-party websites advertising restaurant
services under PACHANGA-formative marks is not so plentiful to make a meaningful
impact in terms of demonstrating commercial weakness. In re Embiid, No. 88202890,
2021 TTAB LEXIS 168, at *52 (TTAB 2021) (three examples “is a ‘far cry from the
large quantum of evidence of third-party use and third-party registrations that was
held to be significant in both’ Jack Wolfskin and Juice Generation.”) (internal
quotation omitted). In addition, there is no evidence showing the extent of public
exposure to these marketplace uses. See Han Beauty Inc. v. Alberto-Culver Co., 236
F.3d 1333, 1338 (Fed. Cir. 2001) (“As the Board recognized, the record includes no
evidence about the extent of [the third-party] uses. The probative value of this
evidence is thus minimal.”). And, again, unlike the records in Jack Wolfskin and Juice
Generation involving combinations of plentiful relevant third-party uses and
registrations, the record in this appeal is void of third-party registrations for marks
containing the term PACHANGA in connection with restaurant services and only 7
third-party uses.
In sum, we are not strongly persuaded by Applicant’s evidence and ultimately
disagree with Applicant’s contention that the term PACHANGA is so weak in
connection with restaurant services that the cited registered mark is only entitled to

Serial No. 98134084
10
a narrow scope of protection. Rather, we find the term PACHANGA to be somewhat
conceptually weak in that it is plainly suggestive in connection with restaurant
services. But the fact that it is suggestive does not mean its scope of protection
shrinks substantially. See In re Great Lakes Canning, Inc., No. 73365360, 1985 TTAB
LEXIS 75, at *7 (“[T]he fact that a mark may be somewhat suggestive does not mean
that it is a ‘weak’ mark entitled to a limited scope of protection.”).
Accordingly, the sixth DuPont factor weighs somewhat against likelihood of
confusion.
B. Comparison of the Marks
We turn now to the first DuPont factor, which focuses on the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation,
and commercial impression. See Palm Bay, 396 F.3d at 1371 (quoting DuPont, 476
F.2d at 1361). Similarity as to any one of these elements may be sufficient to support
a finding that the marks are confusingly similar. See Krim-Ko Corp. v. Coca-Cola Co.,
390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if the similarity in either form,
spelling or sound alone is likely to cause confusion.”); accord In re Inn at St. John’s,
LLC, No. 87075988, 2018 TTAB LEXIS 170, at *13, aff’d mem., 777 F. App’x 516 (Fed.
Cir. 2019).
Applicant’s mark, , and the cited mark,
PACHANGA MEXICAN GRILL, are quite similar in appearance and sound because

Serial No. 98134084
11
the dominant element of the each mark is the term PACHANGA. That is, although
the stylized and colorful donkey’s head appears first and is prominent in Applicant’s
mark, consumers are more likely to focus on and remember the large wording
appearing to the right – LA PACHANGA, which as mentioned translates to “the
party.”
Generally, and here being no exception, “[i]n the case of a composite mark
containing both words and a design, ‘the verbal portion of the mark is the one most
likely to indicate the origin of the goods [or services] to which it is affixed.’” In re
Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (quoting CBS, Inc. v. Morrow, 708
F.2d 1579, 1581-82 (Fed. Cir. 1983)). “[T]he verbal portion of a word and design mark
likely will be the dominant portion” because it “likely will appear alone when used in
text and will be spoken when requested by consumers.” Viterra, 671 F.3d at 1366; see
also L.C. Licensing, Inc. v. Berman, No. 91162330, 2008 TTAB LEXIS 756, at *9 (“[I]t
is well settled that if a mark comprises both a word and a design, then the word is
normally accorded greater weight because it would be used by purchasers to request
the goods.”). In other words, consumers referring to Applicant’s restaurant are likely
to refer to it as “La Pachanga,” without attempting to describe the donkey head
element.
We do not ignore the additional wording in Applicant’s mark. Applicant argues
the addition “LA,” immediately preceding PACHANGA in its mark, has significance
in terms of distinguishing the mark from the cited PACHANGA MEXICAN GRILL
mark. We disagree. The term LA, meaning “the” in Spanish, has minimal

Serial No. 98134084
12
distinguishing effect; rather, it actually modifies and thus emphasizes the noun
PACHANGA that follows. In re Central Soya Co., Serial No. 204098, 1984 TTAB
LEXIS 202, at *6 (“The Spanish article “La,” which means “The,” cannot be said to
have any distinguishing effect.”) (citation omitted).
As to the other additional wording in Applicant’s mark, MARGARITAS Y FIESTA,
this appears secondary in a much smaller font below LA PACHANGA. The disclaimed
term MARGARITAS has very little source-identifying significance because it is a
frequently-ordered drink in restaurants. See, e.g., In re Detroit Ath. Co., 903 F.3d
1297, 1305 (Fed. Cir. 2018) (disclaimers of merely descriptive terms “constitute
rational reasons for giving those terms less weight in the analysis.”) (citing In re Dixie
Rests., Inc., 105 F.3d 1405, 1407 (Fed. Cir. 1997) (finding DELTA the dominant part
of the mark THE DELTA CAFE, in part because the generic word “café” was
disclaimed)).
The term PACHANGA is also the dominant element of the registered mark
PACHANGA MEXICAN GRILL. The disclaimed wording MEXICAN GRILL is
merely descriptive of a cuisine and type of restaurant services and has little, if any,
significance in terms of distinguishing this mark from others. Detroit Athletic, 903
F.3d at 1305.
In terms of meaning and in the context of restaurant services, both marks are
suggestive of a festive Mexican-themed or cuisine establishment. Again, the
dominant element of PACHANGA may be translated as a “(lively) party.” Applicant’s
colorfully-ruffled donkey head is also reminiscent of a pinata, and the wording

Serial No. 98134084
13
“margaritas y fiesta” further reinforces this theme. Similarly, the additional wording
“Mexican grill” in the cited mark in conjunction with PACHANGA invokes the idea
of a casual or lively Mexican cuisine restaurant.
In sum, we conclude that the marks are overall very similar. Consumers are likely
to call for the respective services by using the nearly identical terms LA PACHANGA
or PACHANGA. The marks also have similar connotations and convey similar
commercial impressions. Accordingly, the first DuPont factor weighs in favor of a
conclusion that confusion is likely.
C. Identity of the Services and Channels of Trade
We turn now to the second and third DuPont factors, which concern the
relatedness of the services and the channels of trade for the services. DuPont, 476
F.2d at 1361. In this analysis, we must consider the services as they are identified in
Applicant’s application and the cited registration. See Stone Lion Cap. Partners, L.P.
v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v.
Houston Comp. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir. 1990)). Further, it is sufficient
for a finding of likelihood of confusion as to a class of services in the application if
relatedness is established for any one of the recited services within the application.
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981).
Here, Applicant’s services include “restaurant services,” which are identical to the
Registrant’s services.
As to the channels of trade, we must presume that these identical restaurant
services will the same and will be offered to the same classes of consumers. Viterra
Inc., 671 F.3d 1362 (even though there was no evidence regarding channels of trade

Serial No. 98134084
14
and classes of consumers, the Board was entitled to rely on this legal presumption in
determining likelihood of confusion); see also Genesco Inc. v. Martz, No. 91121296,
2003 TTAB LEXIS 123, at *28 (“Given the in-part identical and in-part related nature
of the parties’ goods, and the lack of any restrictions in the identifications thereof as
to trade channels and purchasers, these clothing items could be offered and sold to
the same classes of purchasers through the same channels of trade.”).
Finally, as noted above, we point out that even if we were to entertain Applicant’s
proposed amendment to the recitation of services—which seeks to modify “restaurant
services” by adding phrases such as “featuring live entertainment” and “offering
seated food and drink operations primarily focused on live entertainment”—it would
not overcome the identity of the services or their presumed trade channels. We must
give full sweep to the recitations of services in both the application and cited
registration and, if one’s services encompasses some or all of the other’s services, they
are deemed legally identical. See S.W. Mgmt., Inc. v. Ocinomled, Ltd., No. 94002242,
2015 TTAB LEXIS 176, at *60-61 (where the goods or services in an application or
registration are broadly described, they are deemed to encompass all the goods or
services of the nature and type described therein) (citation omitted), aff’d mem., 652
F. App’x 971 (Fed. Cir. 2016); In re Hughes Furniture Indus., Inc., No. 85627379, 2015
TTAB LEXIS 65, at 77 (“Applicant’s broadly worded identification of ‘furniture’
necessarily encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”). The cited registration identifies “restaurant services” with no
limitations or restrictions. Thus, we agree with the Examining Attorney that, even

Serial No. 98134084
15
as proposed by the amendment, Applicant’s services “would otherwise remain[ ]
encompassed by the Registrant’s identification.”13
D. Applicant’s Reliance on the ‘Absence of Actual Confusion’
Under the seventh and eighth DuPont factors, we consider the nature and extent
of actual confusion, if any, in light of the length of time and conditions under which
there has been contemporaneous use of the subject marks. DuPont, 476 F.2d at 1361.
Applicant argues:14
Here, both Applicant and the Registrant have been operating in the
marketplace under their respective marks for over four (4) years. This is
confirmed by the information publicly available in the USPTO’s records:
Applicant filed its use-based application in connection with its existing
restaurant operations, and the Cited Registration claims first use dates
well prior to the Office Action refusal. Despite this prolonged period of
coexistence, there is no record evidence—either in the Cited Registration’s
file history or in public-facing litigation records—of any instances of
consumer confusion, complaints, or enforcement efforts between the
parties. …
Accordingly, the lack of actual confusion during this multi-year period of
coexistence strongly supports reversal of the refusal under this DuPont
factor.
Applicant’s “uncorroborated statements of no known instances of actual confusion
are of little evidentiary value.” Majestic Distilling, 315 F.3d at 1317 (“lack of evidence
of actual confusion carries little weight, especially in an ex parte context”) (citation
13 8 TTABVUE 15. We are further cognizant that the Examining Attorney also rejected
Applicant’s proposed amendment as impermissibly expanding the scope of the services; and
that “the amended identification should not be considered as operative.” Id., citing 37 C.F.R.
§ 2.71(a); TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) §1402.07(d). Because we
are not considering the amendment, supra, we need not consider the expansion of scope issue.
14 6 TTABVUE 21-22.

Serial No. 98134084
16
omitted).15 Additionally, given the ex parte context, “there has been no opportunity
to hear from Registrant about whether it is aware of any reported instances of
confusion.” In re Guild Mortg. Co., No. 86709944, 2020 TTAB LEXIS 17, at *23 (TTAB
2020). Accordingly, we find these factors neutral.
III. Conclusion
The first DuPont factor favors a finding of a likelihood of confusion because
Applicant’s mark, , viewed in its entirety, is similar to the
cited mark, PACHANGA MEXICAN GRILL. In addition, the second and third
DuPont factors strongly support a finding that confusion is likely because the
involved restaurant services are identical and their channels of trade are also
presumed to be the same.
Though the shared term, PACHANGA, is plainly suggestive and thus has some
conceptual weakness and a minimal showing of third-party use, which tend to favor
a finding that confusion is not likely, this is far outweighed by the other
aforementioned factors. We thus conclude on this record that Applicant’s mark is
likely to cause confusion with the registered mark.
15 We note as well that this argument is simply attorney argument, unsupported by any
declaration or other evidence in the record. See, e.g., Icon Health and Fitness, Inc. v. Strava,
Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017) (“Attorney argument is not evidence.”) (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).

Serial No. 98134084
17
Decision: The refusal under Trademark Act Section 2(d) to register Applicant’s
mark is affirmed.