Nata Mundo – Gestao de Marcas e Franquias, LDAv.Pinho’s Bakery, Inc.

Trademark Trial and Appeal Board

Jul 9, 2018

No. 92063899 (T.T.A.B. Jul. 9, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: July 9, 2018
UNITED STATES PATENT AND TRADEMARK OFFICE
_______
Trademark Trial and Appeal Board
_______
Nata Mundo – Gestao de Marcas e Franquias, LDA
v.
Pinho’s Bakery, Inc.
_______
Cancellation No. 92063899
_______
David H.E. Bursik for
Nata Mundo – Gestao de Marcas e Franquias, LDA.

William J. Seiter of Seiter Legal Studio for
Pinho’s Bakery, Inc.
_______
Before Mermelstein, Wellington, and Lykos,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Nata Mundo – Gestao de Marcas E Franquias, LDA (“Petitioner”) seeks to cancel
a registration on the Principal Register owned by Pinho’s Bakery, Inc. (“Respondent”)
for the standard character mark THE WORLD NEEDS NATAS (with a disclaimer of
NATAS) for “retail bakery shops” in International Class 35.1

1 Registration No. 4869617 issued on December 15, 2015, based on an application that was
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As a ground for cancellation, Petitioner alleges a likelihood of confusion under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with its registered mark:

(with a disclaimer of LISBOA) for “cafeteria services” in International Class 43. 2
Petitioner also alleges that the involved registration should be cancelled pursuant
to Trademark Act § 1(a), 15 U.S.C. § 1051(a), because Respondent “made no use of
the mark in [the involved registration] on or before January 21, 2015, the filing date
of [the underlying application].”3
In its answer, Respondent made certain admissions, but otherwise denied the
salient allegations in the petition for cancellation. The parties have submitted
evidence and filed briefs.

filed on January 21, 2015, based on use in commerce. The registration contains a statement
“The English translation of the word ‘NATAS’ in the mark is ‘CREAM’ and ‘CREAM-BASED
PASTRIES.’”
2 Registration No. 4594845 issued on September 2, 2014, pursuant to a request for extension
of protection of an International Registration under Section 66(a) of the Act, 15 U.S.C.
§ 1141f(a) (the “Madrid Protocol”) that was filed on May 30, 2013. The registration contains
a statement that “[t]he English translation of ‘NATA’ and ‘LISBOA’ in the mark is ‘cream’
and ‘Lisbon.’”
3 1 TTABVUE 5; Petition for Cancellation ¶ 10.
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I. The Grounds for Cancellation
In its brief, Petitioner argues four grounds for cancellation: fraud;4 non-use;5
abandonment;6 and likelihood of confusion.7
The fraud and abandonment grounds argued by Petitioner were not pleaded in its
petition for cancellation. Indeed, fraud is not even mentioned in the complaint nor
can the complaint be construed as properly setting forth a separate fraud claim.8 With
respect to abandonment, Respondent specifically objects to Petitioner’s argument of
this claim in Petitioner’s trial brief because it was not pleaded and asserts it should
not be heard in this proceeding.9 In its petition for cancellation, Petitioner references
Respondent’s abandonment of an unrelated application (filed before the application
that matured into the subject registration); Petitioner, however, does not allege that
Respondent abandoned its registered mark with an intent not to resume use.10 See

4 12 TTABVUE 27-28.
5 Id. at 28-30.
6 Id. at 30-31.
7 Id. at 31-36.
8 Fraud in procuring a trademark registration occurs when a registrant knowingly made a
false, material representation of fact in connection with its underlying application with the
intent to deceive the USPTO. In re Bose Corp., 580 F.3d 1240, 91 USPQ2d 1938, 1941 (Fed.
Cir. 2009). A plaintiff must allege the elements of fraud with particularity in accordance with
Fed. R. Civ. P. 9(b), made applicable to Board proceedings by Trademark Rule 2.116(a), 37
C.F.R. § 2.116(a). Asian & W. Classics B.V. v. Selkow, 92 USPQ2d 1478, 1478-79 (TTAB
2009). The pleadings must “contain explicit rather than implied expression of the
circumstances constituting fraud.” King Auto., Inc. v. Speedy Muffler King, Inc., 667 F.2d
1008, 212 USPQ 801, 803 (CCPA 1981). “Pleadings of fraud made on ‘information and belief’
when there is no allegation of ‘specific facts upon which the belief is reasonably based’ are
insufficient.” Asian & W. Classics B.V., 92 USPQ2d at 1479 (citing Exergen Corp. v. Wal-Mart
Stores, Inc., 91 USPQ2d 1656, 1670 (Fed. Cir. 2009)).
9 13 TTABVUE 21.
10 Petitioner’s allegations that Respondent has not used its registered mark on or before
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Trademark Act § 45. Furthermore, we cannot conclude that fraud or abandonment
was tried by implied consent under Fed. R. Civ. P. 15(b)(2), given that Respondent
was not put on notice that Petitioner’s evidentiary materials, submitted under a
notice of reliance, would be used to support either claim.11 See Levi Strauss & Co. v.
R. Josephs Sportswear, Inc., 28 USPQ2d 1464, 1471 n.11 (TTAB 1993) (party was not
fairly apprised that evidence used for a pleaded claim of descriptiveness was also
being offered in support of unpleaded likelihood of confusion claim); see also
Trademark Trial and Appeal Board Manual of Procedure (TBMP) § 507.03(b) (June
2018) (“fairness dictates whether an issue has been tried by consent – there must be
an absence of doubt that the nonmoving party is aware that the issue is being tried”).
Accordingly, the only grounds properly before us are non-use and likelihood of
confusion.
II. Evidentiary Record
The record includes the pleadings and, pursuant to Trademark Rule 2.122(b), the
file of the involved registration.
Petitioner filed a notice of reliance on the following materials:12
• Copy of its pleaded registration (Reg. No. 4594845) from the USPTO electronic
database (TESS) showing the current status and title (owner);13

certain dates do not set forth a separate and legally sufficient claim of abandonment. See Otto
Int’l, Inc. v. Otto Kern GmbH, 83 USPQ2d 1861, 1863 (TTAB 2007).
11 See 10 TTABVUE (Petitioner’s Notice of Reliance); fraud and abandonment of the
registered mark are not recited as bases for submission of materials. See Trademark Rule
2.122(g) (“For all evidence offered by notice of reliance, the notice must indicate generally the
relevance of the evidence and associate it with one or more issues in the proceeding.”).
12 10 TTABVUE.
13 Id. at 13-14.
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• Copy of Respondent’s abandoned application (Ser. No. 86104591) from the
USPTO electronic database (TESS), as well as other printouts from the USPTO
electronic database (TSDR) involving the same application;14
• Copies of Respondent’s responses to Petitioner’s discovery requests, including
Petitioner’s first and second sets of interrogatories and requests for production,
and first requests for admission;15
• Declaration of William J. Seiter, Petitioner’s counsel, with an attached
“Marksmen investigation report” regarding Respondent’s business activities
and purported use of the involved mark;16 and
• Printouts from various websites, including: Respondent’s website,
www.pinhosbakery.com, www.wikipedia.org, Petitioner’s website
www.natalisboa.com, and www.tripadvisor.com.17
Respondent submitted the following under a notice of reliance:18
• Copy of a third-party registration (Reg. No. 3461277) for the mark NATAS
PASTRIES (stylized with design) for bakery goods;19
• Copy of an Examiner’s Amendment issued for the underlying application that
matured into the involved registration;20 and
• Pursuant to Trademark Rule 2.122(k), 37 C.F.R. § 2.122(b), copies of
Respondent’s responses to Petitioner’s discovery requests, including
Petitioner’s first and second sets of interrogatories and Petitioner’s first and
second sets of requests for production.

14 Id. at 22-42.
15 Id. at 44-150.
16 Id. at 151-62.
17 Id. at 164-232.
18 11 TTABVUE. Respondent submitted a copy of the involved registration which was
unnecessary as the registration file is automatically of record pursuant to Rule 2.122(b).
19 Id. at 5.
20 Id. at 7-8. The filing of this document was unnecessary since, as noted supra, the file of the
involved registration is already of record.
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III. Petitioner’s Standing
Our primary reviewing court has enunciated a liberal threshold for determining
standing. “A petitioner is authorized by statute to seek cancellation of a mark where
it has both a real interest in the proceeding as well as a reasonable basis for its belief
of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014). A “real interest” is a “direct and personal stake”
in the outcome of the proceeding. Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d
1023, 1026 (Fed. Cir. 1999). A claim of likelihood of confusion that “is not wholly
without merit,” including prior use of a confusingly similar mark, may be sufficient
to “establish a reasonable basis for a belief that one is damaged by the registration
sought to be cancelled.” Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213
USPQ 185, 189 (CCPA 1982).
Petitioner’s likelihood of confusion claim is based on its ownership of the pleaded
registration (Reg. No. 4594845) for the mark NATA LISBOA THE WORLD NEEDS
NATAS (stylized with design) for “cafeteria services,” and, as previously noted, is of
record. This claim is not wholly without merit and we thus find that Petitioner has
established its standing. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55
USPQ2d 1842, 1844 (Fed. Cir. 2000) (party’s ownership of pleaded registration
establishes standing).
IV. Likelihood of Confusion
To prevail on the ground of likelihood of confusion under Section 2(d) of the
Trademark Act, based on a previously used mark, it is Petitioner’s burden to prove
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by a preponderance of the evidence both priority of use and likelihood of confusion.
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1848 (Fed. Cir.
2000); Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40, 43
(CCPA 1981); Life Zone Inc. v. Middleman Grp. Inc., 87 USPQ2d 1953, 1959 (TTAB
2008).
A. Priority of Use
Because both Petitioner and Respondent own registrations, priority is an issue,
and Petitioner has the burden to prove its priority. Brewski Beer Co. v. Brewski Bros.
Inc., 47 USPQ2d 1281, 1284 (TTAB 1998).
Under Section 7 of the Trademark Act, the parties may rely upon the filing dates
of the applications underlying their registrations for purposes of priority as these are
their constructive use dates. 15 U.S.C. § 1057(c); Cent. Garden & Pet Co. v. Doskocil
Mfg. Co., 108 USPQ2d 1134, 1140 (TTAB 2013); Larami Corp. v. Talk to Me
Programs, Inc., 36 USPQ2d 1840, 1844 (TTAB 1995) (parties may rely on the
constructive use (filing) dates for purposes of priority). The parties may, of course,
rely on earlier priority dates, including any dates of use set forth in the applications
and registrations; however, any such earlier priority date must be established by
evidence. See Trademark Rule 2.122(b)(2); Brewski Beer Co., 47 USPQ2d at 1284.
Here, neither party has submitted evidence demonstrating use of their respective
marks earlier than their respective constructive use dates. Specifically, neither party
submitted testimony nor introduced evidence of use of its respective mark whereby
we can find that such use occurred earlier than the party’s respective constructive
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use date. Cf. Powermatics, Inc. v. Globe Roofing Prods. Co., 341 F.2d 127, 144 USPQ
430, 432 (CCPA 1965) (a party may establish priority by testimony alone); Nat’l Blank
Book Co. v. Leather Crafted Products, Inc., 218 USPQ 827, 828 (TTAB 1983).
Accordingly, because Petitioner’s filing date (May 30, 2013) precedes Respondent’s
filing date (January 1, 2015), we find that Petitioner has priority of use.
B. Similarity of the Marks
As far as our likelihood of confusion analysis, we begin with the first du Pont
factor, which involves an analysis of the similarity or dissimilarity of the marks in
their entireties as to appearance, sound, connotation and commercial impression. See
Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d
1369, 73 USPQ2d 1689, 1691 (Fed Cir. 2005) (quoting du Pont, 177 USPQ at 567).
“The proper test is not a side-by-side comparison of the marks, but instead ‘whether
the marks are sufficiently similar in terms of their commercial impression’ such that
persons who encounter the marks would be likely to assume a connection between
the parties.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1721 (Fed. Cir. 2012) (internal citation omitted). The focus is on the
recollection of the average purchaser, who normally retains a general rather than a
specific impression of trademarks. In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009);
Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). Our analysis
cannot be predicated on dissection of the involved marks. See Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014). Rather, we are obliged to consider the marks in their entireties. Id.; see also
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Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA
1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal;
rather, it must be considered as a whole in determining likelihood of confusion.”).
Nonetheless, there is nothing improper in stating that, for rational reasons, more or
less weight has been given to a particular feature of a mark, provided the ultimate
conclusion rests on a consideration of the marks in their entireties. Stone Lion, 110
USPQ2d at 1161.
Again, Respondent’s mark is THE WORLD NEEDS NATAS in standard
characters. Petitioner’s mark is:

Respondent has essentially adopted a mark that is nearly identical to the
dominant literal element of Petitioner’s mark. Likelihood of confusion has been
frequently found where one mark incorporates the entirety of another mark. See, e.g.,
In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1260 (Fed. Cir. 2010)
(applicant’s mark ML is similar to registrant’s mark ML MARK LEES); Lilly Pulitzer,
Inc. v. Lilli Ann Corp., 376 F.2d 324, 153 USPQ 406, 407 (CCPA 1967) (THE LILLY
as a mark for women’s dresses is likely to be confused with LILLI ANN for women’s
apparel including dresses); Hunter Indus., Inc. v. Toro Co., 110 USPQ2d 1651, 1660
(TTAB 2014).
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The term “nata,” itself, refers to cream-based or custard pastry. Respondent
acknowledges this in its registration (see Note 1) and the evidence further shows that
a “nata” is a specialty Portuguese custard tart.21 In the context of Respondent’s
bakery services and Petitioner’s cafeteria services, “nata” is a food item that may be
served or sold in rendering the parties’ retail bakery and cafeteria services, and is
therefore descriptive of those services. Thus the term NATA(S), by itself, has less-
source identifying significance and been appropriately disclaimed in Respondent’s
registration. See, e.g., In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-
34 (Fed. Cir. 1997) (“DELTA,” not the disclaimed generic term “CAFE,” is the
dominant portion of the mark THE DELTA CAFE); see also In re Fr. Croissant, Ltd.,
1 USPQ2d 1238 (TTAB 1986) (LE CROISSANT SHOP (stylized) held descriptive for
“restaurant services”); In re Le Sorbet, Inc., 228 USPQ 27 (TTAB 1985) (LE SORBET
held descriptive for “restaurant and carry-out services”). Likewise, the term LISBOA
in Petitioner’s mark is the Portuguese spelling for the city LISBON (see Note 2), is
thus geographically descriptive, and has also been disclaimed.
As for the design element in Petitioner’s mark, it is prominent in size but is not so
distinctive and cannot be verbalized. See In re Dixie Rests. Inc., 41 USPQ2d at 1534
(“the design is an ordinary geometric shape that serves as a background for the word
mark”). We keep in mind that when evaluating a composite mark containing both
wording and design, it is the literal element that most likely will indicate the origin
of the services because it is the portion of the mark that consumers would use to refer

21 See, e.g., 10 TTABVUE 210-227 (printouts from Petitioner’s website).
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to or request the services. In re Viterra Inc., 101 USPQ2d at 1908, 1911.
Although the term “nata,” by itself, describes an item that may be featured at
Respondent’s bakery or Petitioner’s cafeteria, the phrase “The World Needs Nata(s),”
is unique and dominates both marks. There is no evidence of others using this
expression. While the phrase is suggestive that consumers will encounter “nata”
pastries at Respondent’s bakery or Petitioner’s cafeteria, when considered as a whole,
it does not actually describe either of the services and cannot be said to be weak.
Rather, this expression will be used by consumers for purposes of identifying the
source of either the bakery or cafeteria services.
In sum, the fact that Respondent adopted nearly the exact same expression makes
its mark very similar not only in appearance and sound to Respondent’s mark, but
the marks also convey the same, or very similar, connotation and commercial
impression. Therefore, the first du Pont factor supports a conclusion that confusion
is likely.
C. Similarity of Services
We next address the du Pont likelihood of confusion factor focusing on the
comparison of the services at issue. It is settled that it is not necessary that the
respective services be identical or even competitive in order to find that they are
related for purposes of our likelihood of confusion analysis. The respective services
need only be “related in some manner and/or if the circumstances surrounding their
marketing [be] such that they could give rise to the mistaken belief that [goods]
emanate from the same source.” Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven
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Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); see also In re Martin’s Famous
Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed. Cir. 1984); In re
Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
Respondent provides “retail bakery shop” services and Petitioner renders
“cafeteria” services. On their face, these services are generally related to the extent
they both involve the sale of food items to the consumer. That is, a “bakery” is defined
as “a place for baking or selling baked goods,”22 and a “cafeteria” is defined as “a
restaurant in which the customers serve themselves or are served at a counter and
take the food to tables to eat.”23 Aside from this general point of similarity, the
services may feature the service and sale of the same food items. Indeed, this is
precisely the case in the matter at hand; as their marks suggest and as demonstrated
by the evidence, both Petitioner and Respondent feature the sale of the Portuguese
dessert pastry, “natas.” On the home page of Respondent’s website, the pastry is
mentioned in a rhetorical question describing its bakery offerings, “From the simple
goodness of the multigrain loaf with raisins to the incredible creamy sensation of their
pastel de nata (custard cup) who can walk away with a mere single item?”24 Likewise,
Petitioner’s website emphasizes the importance and its close association with the

22 Taking judicial notice of: “Bakery.” Merriam-Webster.com. Merriam-Webster, July 3, 2018.
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or regular fixed
editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
23 “Cafeteria.” Merriam-Webster.com. Merriam-Webster July 3, 2018.
24 10 TTABVUE 164.
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pastry dessert:25

In other words, while a cafeteria is not a bakery, a consumer specifically seeking
a nata pastry may walk into either Respondent’s bakery or Petitioner’s cafeteria to
purchase one of these. Both parties use of the phrase THE WORLD NEEDS NATA[S]
and this certainly suggests that that natas are being featured, sold and served in both
establishments. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed.
Cir. 1992) (“[E]ven when goods or services are not competitive or intrinsically related,

25 Id. at 211.
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the use of identical marks can lead to an assumption that there is a common source.”);
see also Amcor, Inc. v. Amcor Indus., Inc., 210 USPQ 70, 78 (TTAB 1981).
We further point out that although a bakery, by definition, specializes in baked
goods, this does not mean that its consumers cannot expect to find other non-baked
food items for sale. As Respondent’s own website demonstrates, Respondent offers
“deli … pastry … [items and] specialty cakes,” including cold sandwiches and
salads.26 Some of these same prepared food items, namely cold sandwiches and
salads, are of the type that would also be found for sale and consumption in cafeterias.
Thus, this du Pont factor favors a finding of likelihood of confusion.
II. Conclusion
We have considered all of Respondent’s arguments, including those not
specifically discussed herein, the entire record, and all relevant du Pont factors.
For sake of completeness, we note that Respondent makes an argument that an
allegation made by Petitioner during the prosecution of its pleaded registration,
constitutes an admission of “no likelihood of confusion on the basis of the word
natas.”27 Specifically, Respondent notes that a third party registered the mark
NATAS PASTRIES (stylized with a design) and that later:28
As part of Petitioner’s application for registration, Petitioner included its
sworn statement that there was no likelihood of confusion between its
trademark and any other trademark which includes the above-noted
Marques trademark.

26 Id. at 164-66.
27 13 TTABVUE 22.
28 13 TTABVUE 22-23; Respondent cites to Petitioner’s Notice of Reliance (10 TTABVUE).
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There are several problems with Respondent’s contention and reliance on any
such statement. First, no such allegation from Petitioner is of record. Second, even
under the assumption that Respondent is referring to the standard declaration
language whereby an applicant must state that it “believes applicant to be entitled to
use such mark in commerce; to the best of his/her knowledge and belief no other
person … has the right to use the mark in commerce, either in the identical form
thereof or in such near resemblance thereto as to be likely … to cause confusion,”29
this is not an admission and cannot be relied upon in the manner intended by
Respondent.30 Finally, and perhaps most importantly and as discussed supra, our
finding that the parties’ respective marks are overall very similar is not based merely
on the inclusion of the term NATA, by itself. Rather, as we make clear, the marks are
similar based on Respondent’s adoption of the phrase THE WORLD NEEDS NATAS,

29 The standard declaration language reads as follows:
The undersigned, being hereby warned that willful false statements and the like so
made are punishable by fine or imprisonment, or both, under 18 U.S.C. Section 1001,
and that such willful false statements, and the like, may jeopardize the validity of
the application or any resulting registration, declares that he/she is properly
authorized to execute this application on behalf of the applicant; he/she believes the
applicant to be the owner of the trademark/service mark sought to be registered, or,
if the application is being filed under 15 U.S.C. Section 1051(b), he/she believes
applicant to be entitled to use such mark in commerce; to the best of his/her
knowledge and belief no other person, firm, corporation, or association has the right
to use the mark in commerce, either in the identical form thereof or in such near
resemblance thereto as to be likely, when used on or in connection with the
goods/services of such other person, to cause confusion, or to cause mistake, or to
deceive; and that all statements made of his/her own knowledge are true; and that
all statements made on information and belief are believed to be true.
30 Trademark Rule 2.122(b)(2) provides, in relevant part, “Statements made in an affidavit
or declaration in the file of an application for registration, or in the file of a registration, are
not testimony on behalf of the applicant or registrant.”
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which is practically identical to the expression THE WORLD NEEDS NATA in
Petitioner’s mark. We do not find “likelihood of confusion on the basis of the word
natas,” but rather on a comparison of the marks in their entireties.
Ultimately, because we find that the parties’ marks are very similar and their
respective services are related, we conclude that confusion or mistake, or deception
as to the source of the services, under Section 2(d) of the Trademark Act, is likely.
Decision: The petition for cancellation on the ground of priority and likelihood of
confusion is granted and Registration No. 4869617 will be canceled in due course.31

31 In view of our decision to grant the cancellation on the ground of likelihood of confusion,
we need not reach the non-use claim.