Anheuser-Busch, LLCv.SHE Beverage Company

Trademark Trial and Appeal Board

Jul 31, 2017

No. 91223396 (T.T.A.B. Jul. 31, 2017)

JK Mailed: July 31, 2017

Opposition No. 91223396
Anheuser-Busch, LLC

v.
SHE Beverage Company1

Before Quinn, Lykos and Larkin,
Administrative Trademark Judges.

By the Board:
This proceeding is before the Board for consideration of Opposer’s March 6, 2017
motion for partial summary judgment. The motion is fully briefed.
Background
On December 20, 2014, SHE Beverage Company (“Applicant”) filed Serial No.
86487230 to register the mark THE QUEEN OF BEER (in standard characters) for
“beer” in International Class 32, based on Trademark Act Section 1(a), claiming a
date of first use anywhere and date of first use in commerce of July 11, 2010.

1 The Board’s February 24, 2017 and March 14, 2017 orders were returned to the Board
undeliverable. 25 TTABVUE, 26 TTABVUE. The latter order was addressed to Applicant’s
representative, Lupe Rose, at the street address that is of record, and that is under Ms. Rose’s
signature line on the brief in response to the summary judgment motion. The ESTTA
“Change of Address” form may be used to update the address, as necessary. It is each party’s
responsibility to ensure that the Board has its current correspondence address, including an
email address. TBMP § 117.07 (June 2017).
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
P.O. Box 1451
Alexandria, VA 22313-1451
General Contact Number: 571-272-8500
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB
Opposition No. 91223396

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Anheuser-Busch, LLC (“Opposer”) opposes registration on the grounds of
1) dilution pursuant to Trademark Act Section 43(c);
2) likelihood of confusion pursuant to Trademark Act Section 2(d); and
3) fraud on the USPTO based on lack of use of the mark as of the application
filing date.2

Opposer pleads common law rights “[B]eginning as early as 1951” in the mark KING
OF BEERS for “beer and other related merchandise,”3 as well as ownership of the
following six registrations for marks that consist solely of, or include, KING OF
BEERS (the first four of which are in typed or standard character form):4

2 13 TTABVUE 10-12. Opposer’s last claim (misnumbered as “Count V”), under the subtitle
“Applicant Lacks a Filing Basis” (13 TTABVUE 20) is based on the following allegations:

In its application to register THE QUEEN OF BEER, Applicant represented to the
USPTO that it had been using the mark “in commerce” since at least as early as July
11, 2010.

In its Revised Answer, filed on February 3, 2016, Applicant explained that it
misunderstood the legal effect of its own representations regarding use in commerce
of THE QUEEN OF BEER mark, and admitted that “Applicant misspoke when
Applicant claimed use in commerce since July 11, 2010.” (See Revised Answer, ¶¶ 25-
26).

The Application must therefore be refused because it lacks a filing basis, as required
pursuant to 37 C.F.R. § 2.32 and § 2.34(a).

The core allegation that Applicant was not using its mark as of its claimed date of first use
in commerce does not state a claim upon which relief can be granted. Cf. Hiraga v. Arena,
90 USPQ2d 1102, 1107 (TTAB 2009) (false dates of use are not a proper basis for a claim of
alleging fraud on the USPTO).

3 13 TTABVUE 15.
4 13 TTABVUE 8-9.
Opposition No. 91223396

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Trademark/Design Reg. No. Goods

KING OF BEERS

847,980

Beer
KING OF BEERS

1,592,134 Clothing, namely, caps, hats, shirts, sweatshirts, shorts, jackets

KING OF BEERS

2,802,092

Neon signs

KING OF BEERS

3,503,206

Sauces, marinades and barbecue meat
seasoning

4,133,239

Beer

4,133,238

Beer

In its answer, Applicant admits certain salient allegations, as further discussed
below.
Opposition No. 91223396

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Opposer moved for partial summary judgment with respect to its Section 2(d)
claim.5
Analysis
Summary judgment is appropriate where there are no genuine disputes as to any
material facts, thus allowing the case to be resolved as a matter of law. Fed. R. Civ.
P. 56(a). The party seeking summary judgment bears the burden of demonstrating
the absence of any genuine dispute of material fact, and that it is entitled to judgment
under the applicable law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Sweats
Fashions, Inc. v. Pannill Knitting, 833 F.2d 1560, 4 USPQ2d 1793, 1796 (Fed. Cir.
1987). A factual dispute is genuine if, on the evidence of record, a reasonable fact
finder could resolve the matter in favor of the non-moving party. Opryland USA Inc.
v. Great Am. Music Show Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992);
Olde Tyme Foods, Inc. v. Roundy’s, Inc., 961 F.2d 200, 22 USPQ2d 1542, 1544 (Fed.
Cir. 1992).
Evidence on summary judgment must be viewed in a light most favorable to the
non-movant, and all justifiable inferences are to be drawn in the non-movant’s favor.
Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029 (Fed. Cir.
1993); Opryland USA, 23 USPQ2d at 1472. The Board may not resolve genuine
disputes as to material facts; it may only ascertain whether genuine disputes as to

5 Opposer also moved for summary judgment on its “Applicant Lacks a Filing Basis”
allegations. 23 TTABVUE 15. However, as noted in Footnote 2, the allegations set forth
thereunder do not state a claim upon which relief can be granted. Accordingly, we have given
no consideration to that portion of Opposer’s motion. Cf. TBMP § 528.07(a) (June 2017) (a
party may not obtain summary judgment on an unpleaded issue).
Opposition No. 91223396

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material facts exist. Lloyd’s Food Prods., 25 USPQ2d at 2029; Olde Tyme Foods, 22
USPQ2d at 1544.
To prevail on summary judgment, Opposer must demonstrate that there is no
genuine dispute of material fact that 1) it has standing to bring this proceeding; 2) it
has registered or previously used a mark; and 3) contemporaneous use of the parties’
respective marks on or in connection with their respective goods is likely to cause
confusion, mistake or to deceive consumers. Hornblower & Weeks, Inc. v. Hornblower
& Weeks, Inc., 60 USPQ2d 1733, 1735 (TTAB 2001).
Standing
To have standing, a plaintiff must have a real interest, i.e., a personal stake in
the outcome of the proceeding, and a reasonable basis for its belief that it will be
damaged. Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111
USPQ2d 1058, 1062 (Fed. Cir. 2014), cert. denied, 135 S. Ct. 1401 (2015); Ritchie v.
Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025-28 (Fed. Cir. 1999).
On summary judgment, Opposer’s standing is not disputed by Applicant.
Nonetheless, as discussed below, we find that Opposer, through uncontroverted
evidence of use, has established prior common law rights in the mark KING OF
BEERS for beer. Thus, Opposer has demonstrated that it has proprietary rights in
the mark, and has a personal stake in the outcome of this proceeding and a reasonable
basis for its belief that it will be damaged by registration of Applicant’s mark THE
QUEEN OF BEER for “beer.”
Opposition No. 91223396

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Accordingly, Opposer has demonstrated that there is no genuine dispute that it
has standing.
Priority
To show that there is no genuine dispute as to priority, Opposer must establish
that, vis-à-vis Applicant, it owns “a mark or trade name previously used in the United
States … and not abandoned….” Trademark Act Section 2. It may establish prior
proprietary rights through ownership of a registration, actual use or through use
analogous to trademark use. Trademark Act Sections 2(d) and 45.
With its motion, Opposer submits copies of registration data and certificates for
five of its six pleaded registrations.6 Inasmuch as the copies do not show the current
status of and title to the registrations, they are insufficient to establish the validity
of the pleaded registrations, and thus do not establish Opposer’s priority in the
manner allowed by Trademark Rule 2.122(d)(1). Consequently, we must look to the
remainder of the record for evidence of common law use to ascertain if Opposer has
carried its burden regarding priority.
Opposer submits the declaration of its current Director of the U.S. Bud Light
Brand Team, who attests:
[B]eginning in or about 1951, Anheuser-Busch adopted the mark KING OF
BEERS and began to use it in connection with the sale and marketing of
BUDWEISER beer. That mark is often used by Anheuser-Busch as THE KING
OF BEERS, as in ‘BUDWEISER, THE KING OF BEERS.”7

6 23 TTABVUE 43, 46-53; Nadya Davis declaration, ¶ 5, Exh. A.
7 23 TTABVUE 19; Colleen Lucas declaration, ¶ 6.
Opposition No. 91223396

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The accompanying exhibits are various print advertisements from the 1950s through
the 1990s, and various packaging from the 1950s, 1960s and 1990s, showing the mark
KING OF BEERS or THE KING OF BEERS on or in connection with beer.8
As for Applicant’s answer to the notice of opposition, Applicant admits the
following allegation:
Since well prior to the filing date of the Application, and any date of first use
upon which Applicant may rely, Opposer has used the KING OF BEERS Marks
in connection with beer and related merchandise and promotional materials.9

Relatedly, in ¶7 of the notice of opposition, Opposer alleges:

The KING OF BEERS Registrations provide constructive notice of Opposer’s
ownership of its KING OF BEERS Marks.

In its answer, Applicant responds to ¶ 7 as follows:

Applicant admits to the factual allegations of ¶7 to the extent that Applicant
recognizes the Opposer has trademark ownership of the moniker, “KING OF
BEERS.

On this record, Opposer has established that there is no genuine dispute as to its
priority with respect to common law use of the mark KING OF BEERS, on or in
connection with beer, prior to the December 20, 2014 filing date of Applicant’s
involved application.
Likelihood of Confusion
The determination of likelihood of confusion is based on an analysis of all of the
probative facts that are properly in evidence that are relevant to the thirteen factors
set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA

8 23 TTABVUE 19, 27-38; Lucas decl., ¶ 6, Exh. B-C.
9 13 TTABVUE 11, 19; Notice of Opp. ¶ 18, admitted at 17 TTABVUE 5 (“Applicant admits
to the factual allegations of ¶ 18 of the Opposition.”)
Opposition No. 91223396

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1973) (“du Pont factors”). See also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201 (Fed. Cir. 2003). We look to whether there are genuine disputes with
respect to any of these factors which would be material to a decision on the merits.
Two key considerations in every likelihood of confusion analysis are the
similarities between the marks, and the similarities between the goods and services.
In re Chatam Int’l Inc., 380 F.2d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004); Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976);
Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1429 (TTAB 2013).
The analysis before us involves the mark THE QUEEN OF BEERS for “beer”
versus the mark KING OF BEERS for several goods, including “beer.” As for the
second du Pont factor, the record establishes that the goods for which Opposer has
proven priority, and Applicant’s identified goods, are identical. Consequently, under
the third du Pont factor - the similarity or dissimilarity of established and likely-to-
continue trade channels - we rely on the legal presumption that the channels of trade
and distribution in which the goods travel, and the classes of purchasers to whom
they are sold, are the same. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905,
1908 (Fed. Cir. 2012); Anthony’s Pizza & Pasta Int’l. v. Anthony’s Pizza Holding Co.,
Inc., 95 USPQ2d 1271, 1279 (TTAB 2009), aff'd, 415 Fed. Appx. 222 (Fed. Cir. 2010);
Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB 2003). As for the fourth du Pont
factor - the conditions under which and buyers to whom sales are made - relative to
the goods at issue here, the Board has previously found that beer is often relatively
inexpensive, subject to impulse purchase, and ordered orally in a bar or restaurant.
Opposition No. 91223396

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In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB 2016) (citing Recot Inc.
v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000)); Specialty
Brands, Inc. v. Coffee Bean Distrib., Inc., 748 F.2d 669, 223 USPQ 1281, 1282 (Fed.
Cir. 1984). Applicant provides no evidence to the contrary. Thus, the conditions of
sale weigh in favor of a likelihood of confusion.
We turn now to the first du Pont factor. Because they appear on and in connection
with identical goods, in comparing the marks THE QUEEN OF BEERS and KING
OF BEERS in their entireties, the degree of similarity between the marks that is
necessary to support a finding of likelihood of confusion is not as great as if there
were a recognizable disparity between the goods. Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012); Century 21
Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700
(Fed. Cir. 1992); Anthony’s Pizza & Pasta Int’l., 95 USPQ2d at 1279.
Opposer maintains that the marks are virtually identical because Applicant
merely replaced “king” with the connotatively similar word “queen,” and that
Applicant transposed these words in otherwise identical marks. Opposer notes the
analysis in a prior decision wherein the Board found that “king” and “queen” both
identify royal heads of state - a male sovereign and a female sovereign - and that
consumers would be likely to view the mark of the defendant therein, THE QUEEN
OF BEERS for “beer,” as an extension of Opposer’s KING OF BEERS beer product
line. Opposer further argues that Applicant’s changing of the plural “beers” to “beer”
Opposition No. 91223396

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is insignificant and does nothing to meaningfully affect the mark’s appearance,
sound, connotation or commercial impression.10
Applicant argues that the overall appearance, connotation, and commercial
impression of the marks are different;11 that THE QUEEN OF BEER does not
substantially copy Opposer’s KING OF BEERS marks;12 that “The Queen of” and
“King of” are distinguishable,13 and that the marks considered in their entireties “are
very different as a whole.”14 Applicant’s only evidence with its brief is four images
that are not self-authenticating and were not authenticated (e.g., by deposition or
declaration testimony); Applicant does not specifically discuss the images.15
Accordingly, Applicant did not come forward with evidence to raise a genuine dispute
concerning the similarity of the marks.
On this record, Opposer has shown that there is no genuine dispute that the
marks KING OF BEERS and THE QUEEN OF BEER are highly similar in
appearance, sound, connotation and commercial impression. Both marks present the
prominent, distinctive terms “king” and “queen,” which terms constitute the familiar
royal titles of a male and female sovereign, respectively, and thus create the same
commercial connotation of a product that possesses the qualities of, or is for, a royal

10 23 TTABVUE 13-14. Opposer submits a copy of the decision in Anheuser-Busch, Inc. v.
Sydney Goldstein, Opposition No. 91106963; 23 TTABVUE 133-136.
11 27 TTABVUE 5.
12 27 TTABVUE 6.
13 27 TTABVUE 7-8.
14 27 TTABVUE 8.
15 27 TTABVUE 9-10. The materials appear to be a page depicting four of Applicant’s bottled
beer products and associated wording, and three images of Opposer’s KING OF BEERS mark
in stylized form.
Opposition No. 91223396

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sovereign. But for the differences in these two complimentary terms, the marks are
otherwise virtually identical. That is, the prepositional phrases “of beers” and “of
beer” appear in the same place in both marks, equally identify that the subject
product is beer, and in the same manner suggest a connection between a beer product
and royalty. Comparing the marks as a whole, the minimal differences that
Applicant adopted in its mark - the mere addition of the article “the,” and the
singularization of the generic term “beer” - do not render its mark capable of creating
a different commercial impression in the minds of purchasers.
We turn next to the fifth du Pont factor - the fame of Opposer’s mark. Fame,
where it exists, plays a dominant role in likelihood of confusion. Kenner Parker Toys
Inc. v. Rose Arts Indus., Inc., 963 F.2d 350, 22 USPQ2d 1453 (Fed. Cir. 1992).
Opposer points to Applicant’s answer, wherein Applicant admitted the following
allegations:
Opposer’s KING OF BEERS Marks have become well known and famous as a
designator of Opposer’s beer and related merchandise and promotional
materials.16

Opposer’s KING OF BEERS Marks became famous under 15 U.S.C. § 1125(c)
well prior to the filing date of the Application, and any date of first use upon
which Applicant may rely.17

In addition, Opposer submits a declaration attesting to, inter alia, advertising
and promoting its BUDWEISER beer using the slogans KING OF BOTTLED BEERS
and THE KING OF BOTTLED BEER since 1899; expenditures since 1980 of
“hundreds of millions of dollars to advertise and promote” its beer products, many

16 23 TTABVUE 6; 13 TTABVUE 18; Notice of Opp. ¶ 14, admitted at 17 TTABVUE 4.
17 23 TTABVUE 6; 13 TTABVUE 18; Notice of Opp. ¶ 15, admitted at 17 TTABVUE 4.
Opposition No. 91223396

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featuring the KING OF BEERS mark; promotion “in almost every form of advertising
medium available,” promotion “through various sponsorships and endorsements;”
expenditure from 1967 to 1976 of “millions of dollars advertising its beer featuring
prominent references to the KING OF BEERS mark on television and radio;” and
appearance of KING OF BEERS on packaging since 1980 “on the label of each and
every bottle and can of BUDWEISER beer sold in the United States.”18
Applicant did not address the fame of Opposer’s mark in its brief and expressly
admitted that the mark is famous. Thus, on this record, Opposer has demonstrated
that for purposes of likelihood of confusion, there is no genuine dispute that its mark
KING OF BEERS is famous for beer.
Findings and Conclusion
Having considered the evidence as a whole and in the light most favorable to
Applicant as the non-movant, we find that Opposer has met its burden of
demonstrating that there is no genuine dispute of material fact that the
contemporaneous use of the marks THE QUEEN OF BEER and KING OF BEERS,
in connection with “beer,” is likely to cause confusion, especially in light of the
admitted fame of Opposer’s mark. Based on this finding, Opposer’s motion for partial
summary judgment is granted with respect to its Section 2(d) claim. Fed. R. Civ. P.
56(a).
Accordingly, the opposition is sustained, and registration of application Serial No.
86487230 is refused. The Board thus will not entertain Opposer’s remaining claims.

18 23 TTABVUE 18-20; Lucas decl., ¶ 4-12.
Opposition No. 91223396

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Am. Paging Inc. v. Am. Mobilphone Inc., 13 USPQ2d 2036, 2039-40 (TTAB 1989),
aff’d, 923 F.2d 869, 17 USPQ2d 1726 (Fed. Cir. 1990).