The Board affirmed a refusal to register the mark IZAKAYA KOPAN RAMEN & Design (shown below) for restaurant services [IZAYAKA and RAMEN disclaimed], finding a likelihood of confusion with the registered mark KOPAN for, inter alia, restaurant services. Applicant Chang argued that the parties’ respective restaurants differ dramatically in style of food and atmosphere, but the Board pooh-poohed that argument, observing that there are no such limitations in the application or cited registration. In re Chang, Serial No. 87503270 (June 12, 2019) [not precedential] (Opinion by Judge Lorelei Ritchie].

Since the involved services are “legally identical,” they are presumed to travel in the same channels of trade to the same class of consumers. These factors “weigh heavily in favor of a finding of  likelihood of confusion.”

Applicant stated that the word KOPAN has no significance, nor is it a term of art in the relevant field. He noted that KOPAN does not have a relevant translation in Korean, Chinese, or Japanese. His appeal brief stated that “it has recently come to light that KOPAN as used in the mark is a fanciful term that combines the words Korea and Japan.” He offered no evidence in support of that assertion, and in any case his argument that KOPAN is “fanciful” was of no help to his cause. Even if KOPAN is suggestive, it is still inherently distinctive and protectable.

As to the marks, Applicant Chang conceded that “izayaka” means “gastropub” in Japanese and that “ramen” is descriptive of the food items on the menu. Both words were disclaimed by Chang, and therefore these two words have less significance in the Section 2(d) analysis. The design of a bowl with chopsticks merely emphasizes the literal element in the applied-for mark. Since the mark in the cited registration is in standard character form, it could be presented in the same size, font, and color as applicant’s mark.

The Board found that the marks have the same connotation and commercial impression. “To the extent consumers may understand the term ‘KOPAN’ as completely fanciful, Applicant’s mark may be perceived as an extension of Registrant’s restaurant services.” Of course, when the services are identical, as here, a lesser degree of similarity in the marks is necessary to support a finding of likely confusion.

Balancing the relevant du Pont factors, and concluding that the marks are “similar in sight and sound and especially in connotation and commercial impression,” the Board affirmed the Section 2(d) refusal to register.

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TTABlog comment: To me, “kopan” seems to describe a method of cooking wherein one uses two pans side-by-side. But we know that side-by-side comparison is not the proper test under Section 2(d). So nevermind.

Text Copyright John L. Welch 2019.