Arizona Cider, LLC

Trademark Trial and Appeal Board

Sep 30, 2020

87605498 (T.T.A.B. Sep. 30, 2020)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: September 30, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Arizona Cider, LLC
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Serial No. 87605498
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Jennifer Mott of Aspey Watkins & Diesel, PLLC,
for Arizona Cider, LLC.
Justine D. Parker, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Lykos, Pologeorgis, and Coggins,
Administrative Trademark Judges.

Opinion by Coggins, Administrative Trademark Judge:
Arizona Cider, LLC (“Applicant”) seeks registration on the Principal Register of
the mark STOIC in standard characters for, as amended, “house mark for hard cider;
house mark for wine” in International Class 33.1

1 Application Serial No. 87605498 was filed on September 12, 2017, under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based upon Applicant’s allegation of a bona fide
intention to use the mark in commerce. Applicant submitted an amendment to allege use on
May 25, 2018, amending the application to a Section 1(a) basis, 15 U.S.C. § 1051(a), claiming
first use anywhere at least as early as September 15, 2017, and use in commerce at least as
early as December 1, 2017.
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The Trademark Examining Attorney refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, as applied
to the goods identified in the application, so resembles the mark THE STOIC in
standard characters for “ale” in International Class 322 registered on the Principal
Register as to be likely to cause confusion, to cause mistake, or to deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed and fully briefed. We affirm the refusal to
register.
I. Evidentiary Issue
The Examining Attorney submitted for the first time with her brief a definition of
“stoic” from two sources to “show that ‘stoic’ can be a noun or an adjective” and a
request that the Board take judicial notice thereof.3 9 TTABVUE 11 (request), 18-30
(definitions).4 While it is well-established that the “Board may take judicial notice of
definitions from printed dictionaries that were not made of record prior to appeal,
and may do so either sua sponte or upon request of the . . . examining attorney,”
TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 710.01(c) (Oct. 2018), and

2 Registration No. 4043432, issued October 18, 2011. Section 8 accepted, Section 15
acknowledged.
3 9 TTABVUE 11 (request), 18-30 (definitions).
4 Citations to the prosecution file refer to the Trademark Status & Document Retrieval
(“TSDR”) system and identify documents by title and date. Specific citations are to the page
number in the downloadable .pdf version of the TSDR record. Citations to the briefs and other
materials in the appeal record refer to the Board’s TTABVUE docket system.
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Applicant did not object to the request in its reply brief, we see no need in granting
the request inasmuch as there is already a definition of “stoic” of record submitted
prior to appeal and demonstrating that the word may be both a noun and an adjective.
See June 20, 2018 Response to Office Action at 11 (vocabulary.com/dictionary.stoic).
Accordingly, we deny the request.
II. Applicable Law
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence that are relevant to the factors set forth in In re
E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973)
(“DuPont”). See also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). We consider each DuPont factor for which there is evidence and
argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-
63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two key considerations
are the similarities between the marks and the similarities between the goods. See In
re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative
effect of differences in the essential characteristics of the goods and differences in the
marks.”).
A. The Similarity or Dissimilarity of the Marks
Under the first DuPont factor, we compare Applicant’s mark and the cited
registered mark “in their entireties as to appearance, sound, connotation and
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commercial impression.” In re Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed.
Cir. 2012) (quoting DuPont, 177 USPQ at 567); see also Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient to find the
marks confusingly similar.” In re Inn at St. John’s, 126 USPQ2d 1742, 1746 (TTAB
2018). Accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523,
526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound
alone is likely to cause confusion.”) (citation omitted). “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.” In re
i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017) (quoting
Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721
(Fed. Cir. 2012)) (internal quotation marks omitted).
Here, Applicant’s mark is STOIC in standard characters, and Registrant’s mark
is THE STOIC in standard characters.
Applicant argues that the presence of the definite article “the” in Registrant’s
mark distinguishes the marks in a meaningful way, “creat[ing] distinct commercial
impressions,” 7 TTABVUE 19, particularly because “stoic” standing alone is an
adjective while “the stoic” is a noun. 7 TTABVUE 20. However, there is nothing to
limit “stoic” without a preceding “the” from being a noun. Even assuming the
connotation of the marks differ under Applicant’s argument, such a difference would
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be minimal. The dictionary definition of record explains that “[t]he noun stoic is a
person who’s not very emotional. The adjective stoic describes any person, action, or
thing that seems emotionless and almost blank.” June 20, 2018 Response to Office
Action at 11 (vocabulary.com/dictionary.stoic). The noun identifies a person with the
qualities described by the adjective; therefore, even if the marks would be perceived
as STOIC, an adjective, and THE STOIC, a noun, the commercial impressions would
be highly similar – both relating to the quality of being non-emotional.
We find the word in Applicant’s mark (STOIC) is essentially identical to the
wording of Registrant’s mark (THE STOIC) in “appearance, sound, connotation and
commercial impression.” Palm Bay Imps. Inc., 73 USPQ2d at 1691 (quoting DuPont,
177 USPQ at 567). Because the inclusion of the term “the” at the beginning of a mark
will generally not affect or otherwise diminish the overall similarity between marks,
the inclusion of that definite article in Registrant’s mark has minimal, if any, source-
identifying significance. See In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009)
(finding WAVE and THE WAVE “virtually identical” marks; “[t]he addition of the
word ‘The’ at the beginning of the registered mark does not have any trademark
significance.”); In re Narwood Prods. Inc., 223 USPQ 1034, 1034 (TTAB 1984) (finding
THE MUSIC MAKERS and MUSIC-MAKERS “virtually identical” marks; the
inclusion of the definite article “the” is “insignificant in determining likelihood of
confusion”); Bank of Am. Nat’l Trust & Savings Ass’n v. First Nat’l Bank of Allentown,
220 USPQ 892, 896 (TTAB 1984) (finding TIMESAVER and THE TIMESAVER
STATEMENT to be “confusingly similar” marks).
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Applicant argues that “the marks [will not] be identical when used on the goods.”
7 TTABVUE 21. Specifically, Applicant posits that “[c]ontrary to marks for most
goods and services, trademark owners are not free to display their marks on alcoholic
beverages however they wish,” 10 TTABVUE 3, and a registration for its mark would
“not negate the [Alcohol and Tobacco Tax and Trade Bureau] labelling restrictions”
to which its goods are subject. 10 TTABVUE 4. However, during ex parte
examination, the marks are compared as they appear on the drawing page of the
application and registration certificate; the USPTO does not consider how an
applicant and registrant actually use their marks in the marketplace. In re Aquitaine
Wine USA, LLC, 126 USPQ2d 1181, 1186 (TTAB 2018) (citing In re i.am.symbolic,
llc, 123 USPQ2d at 1749). In addition, both Applicant’s and Registrant’s marks are
in standard characters, and as such, their display is not limited to any particular font
style, size, or color. See Trademark Rule 2.52(a). We therefore must conclude that
they may be displayed in the same or similar lettering style or color. In re Viterra
Inc., 101 USPQ2d at 1909; Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d
1344, 98 USPQ2d 1253, 1258-59 (Fed. Cir. 2011); In re Aquitaine Wine USA, 126
USPQ2d at 1886 (“[A] ‘standard character mark’ . . . may be used in ‘any particular
font style, size, or color.”’).
Applicant insists that “all of the relevant products (cider, wine and ale) are subject
to labeling requirements” which require various specific information. 7 TTABVUE 8.
Applicant argues that “the comparison is between a house mark and a product mark,
an important distinction.” 7 TTABVUE 21. Applicant further asserts that “[h]ouse
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marks differ from undesignated product marks,” 7 TTABVUE 10, “[h]ouse marks are
distinguishable from product marks for alcoholic beverages,” 7 TTABVUE 11, and
that its identification of goods “expressly contains a ‘house mark’ limitation while the
[c]ited [m]ark does not.” 7 TTABVUE 12. These arguments are unavailing. Again, we
note that “we do not consider how Applicant and Registrant actually use their marks
in the marketplace, but rather how they appear in the registration and the
application. We must compare the marks as they appear in the drawings, and not on
any labels that may have additional wording or information.” In re Aquitaine Wine
USA, 126 USPQ2d at 1186 (citing In re i.am.symbolic, 123 USPQ2d at 1729). See
TMEP § 1207.01(b) (“the analysis is based on the marks as depicted in the respective
application and registration, without regard to whether the marks will appear with
other marks, such as house marks, or other elements when used”).
Under the circumstances, we find that the standard character marks THE STOIC
and STOIC are similar in appearance, sound, connotation, and commercial
impression. Accordingly, this DuPont factor weighs heavily in favor of finding a
likelihood of confusion.
B. The Goods, Trade Channels, and Classes of Purchasers
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration,” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014), and the third DuPont factor concerns “[t]he similarity or
dissimilarity of established, likely-to-continue trade channels.” Id. at 1161 (quoting
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DuPont, 177 USPQ at 567). We make our determination under these factors based on
the goods as they are identified in the application and the cited registration. See Stone
Lion, 110 USPQ2d at 1161; In re Ox Paperboard, 2020 USPQ2d 10878, *5 (TTAB
2020) (citing In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1052 (Fed.
Cir. 2018); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d
1001 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937,
16 USPQ2d 1783, 1787 (Fed. Cir. 1990)).
The goods need not be identical or even competitive in order to find a likelihood of
confusion. Rather, the question is whether the goods are marketed in a manner that
“could give rise to the mistaken belief that [the] goods emanate from the same source.”
Coach Servs. Inc. v. Triumph Learning LLC., 101 USPQ2d at 1722 (quoting 7-Eleven
Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). See also Hewlett-Packard Co.
v. Packard Press Inc., 227 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (“Even
if the goods and services in question are not identical, the consuming public may
perceive them as related enough to cause confusion about the source or origin of the
goods and services.”); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898
(Fed. Cir. 2000) (“even if the goods in question are different from, and thus not related
to, one another in kind, the same goods can be related in the mind of the consuming
public as to the origin of the goods”); Kohler Co. v. Baldwin Hardware Corp., 82
USPQ2d 1100, 1109 (2007).
As noted above, Applicant’s goods are “hard cider” and “wine;” Registrant’s are
identified as “ale.” Applicant argues that “[t]here is no per se rule that all beverages
Serial No. 87605498
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containing alcohol are related.” 7 TTABVUE 14. We agree . See In re White Rock
Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB 2009) (“There is no per se rule that
holds that all alcoholic beverages are related.”) (citing G.H. Mumm & Cie v. Desnoes
& Geddes Ltd., 917 F.2d 1292, 16 USPQ2d 1635 (Fed. Cir. 1990) and Nat’l Distillers
and Chem. Corp. v. William Grant & Sons, Inc., 505 F.2d 719, 184 USPQ 34 (CCPA
1974)). See also TMEP § 1207.01(a)(iv) (“[T]here can be no rule that certain goods or
services are per se related, such that there must be a likelihood of confusion from the
use of similar marks in relation thereto”). “[E]ach case must be decided on its own
facts,” DuPont, 177 USPQ at 567, meaning that we must look to the particular record
before us in making our assessment.
The Examining Attorney adduced third-party Internet evidence in support of her
position that the goods are related in a manner that would lead relevant consumers
to believe both sets of goods often come from a single source. The evidence includes
screenshots from over 20 entities that use the same mark for wine or hard cider on
the one hand and ale on the other. See December 21, 2017 Office Action at 7-33; July
30, 2018 Office Action at 6-46; and October 6, 2019 Final Office Action at 7-144. For
example, see motorcitybeer.com5 (ale, wine, and hard cider), dogfish.com6 (ale and
hard cider), carillonbrewingco.org7 (ale, wine and hard cider), drinkmichigan.com8

5 July 30, 2018 Office Action at 6-11.
6 Id. at 12-15.
7 Id. at 20-23.
8 Id. at 30-35.
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(ale and wine), sprecherbrewery.com9 (ale and hard cider), wynridge.com10 (ale and
hard cider), and vineyardathershey.com11 (ale and wine). This evidence demonstrates
that it is not uncommon for the same establishment to produce and market under the
same mark Applicant’s and Registrant’s bottled alcoholic beverages.
Applicant counters that “there are over 6,500 breweries in the United States,” but
“the Examin[ing Attorney] cites eleven (11) entities that produce cider and beer and
eleven (11) entities that offer both wine and beer. While there is no magic number of
examples that will prove the offerings from one source are ‘common,’ these few cited
entities clearly fall short both numerically and in what they . . . are supposed to show.”
7 TTABVUE 16. However, “[t]here is no requirement for goods to be found related
that all or even a majority of the sources of one product must also be sources of the
other product. Therefore, evidence showing only that the source of one product may
not be the source of another product does not aid applicant in its attempt to rebut the
evidence of the examining attorney.” In re G.B. Tile and Stone, Inc., 92 USPQ2d 1366,
1370 (TTAB 2009). In this case, the Internet evidence demonstrates that consumers
would expect ale on the one hand and wine or hard cider on the other to originate
from a single source, thus indicating that the goods Applicant and Registrant are
commercially related and may be encountered together by consumers.

9 October 6, 2019 Final Office Action at 39-48.
10 Id. at 49-57.
11 Id. at 82-93.
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The Examining Attorney points to the same third-party Internet evidence in
support of her position that the goods are sold in the same trade channels to the same
classes of consumers. In the absence of limitations in the application and cited
registration, we must presume that the goods travel through all usual channels of
trade for such goods and are offered to all normal potential customers, namely
ordinary adult consumers of alcoholic beverages. Anheuser-Busch, LLC v. Innvopak
Systems Pty Ltd., 115 USPQ2d 1816, 1825-26 (TTAB 2015). These channels include
liquor stores, bars and restaurants, and (depending on the jurisdiction) supermarkets
and convenience stores. In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB
2016); Anheuser-Busch, 115 USPQ2d at 1827; In re Sailerbrau, 23 USPQ2d at 1720.
As shown by the Internet evidence, Applicant’s and Registrant’s goods are also offered
on the same business to consumer websites and at the same locations (i.e., at a
brewery or winery) under the same marks.
Overall, we find that the Examining Attorney’s Internet evidence supports
findings that Applicant’s and Registrant’s goods are related, and are offered in
overlapping channels of trade and to the same class of consumers. In re Davey Prods.
Pty Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91
USPQ2d 1266, 1272 (TTAB 2009); In re Paper Doll Promotions, Inc., 84 USPQ2d
1660, 1668 (TTAB 2007). As a result, in our likelihood of confusion analysis these
findings under the DuPont factors of the relatedness of the goods, their trade
channels and classes of consumers also support a finding that confusion is likely.
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C. Conditions under Which Sales Are Made
In its reply brief, Applicant “underscore[s] the importance of . . . a series of federal
regulations including Alcohol and Tobacco Tax and Trade Bureau regulations on
labelling” to which its goods are subject, arguing that these influence “the conditions
of purchase and the market” as consumers will have “experience with numerous other
house marks and product names throughout the market.” 10 TTABVUE 3.
While there may very well be labeling requirements mandating certain
information and font sizes as Applicant argues, there is no evidence of record to
suggest how the requirements affect consumers or whether consumers are
knowledgeable about labelling regulations. Generally, other matter that is currently
required by government regulations to appear on a product label will not reliably
serve to distinguish confusingly similar trademarks from each other. As the Board
stated in In re Merck & Co., Inc., 189 USPQ 355, 356 (TTAB 1976):
[T]he regulations of the Federal Food and Drug Agency are
of no significance on the question here before the Board. . .
. [T]he issue under consideration in this appeal is whether
the applicant may be permitted to register its mark in view
of a prior registration of an allegedly confusingly similar
mark. The presence of other matter on the label of the
particular product here involved can have no bearing on
the decision as to said marks.
Moreover, Applicant’s argument does not apply to uses of Applicant’s and Registrant’s
trademarks otherwise than on labels. For example, it is common knowledge that wine
may be packaged by the case in boxes with a trademark affixed thereto. Similarly,
wine and ale are frequently advertised on the Internet where label information
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cannot be discerned, as revealed by many of the Internet excerpts discussed above.
We treat this factor as neutral.
D. Any Other Established Fact
Applicant argues under the thirteenth DuPont factor (i.e., “any other established
fact probative of the effect of use,” DuPont, 177 USPQ at 567), that its wine and cider
goods fall into Class 33 while Registrant’s ale is in Class 32 and “the fact that the
goods are in separate classes cannot completely be disregarded.” 7 TTABVUE 18.
This argument is unavailing. It is well settled that the classification of goods and
services is for the administrative convenience of the USPTO and has no bearing on
the likelihood of confusion analysis. See Trademark Act Section 30, 15 U.S.C. § 1112
(“The Director may establish a classification of goods and services, for convenience of
Patent and Trademark Office administration, but not to limit or extend the
applicant’s or registrant’s rights.”); Jean Patou Inc. v. Theon Inc., 9 F.3d 971, 29
USPQ2d 1771, 1774 (Fed. Cir. 1993) (stating that “[c]lassification is to facilitate
searching for registered marks which is primarily what is meant by ‘the convenience
of the’ PTO[,]”and is “wholly irrelevant to the issue of registrability under section
1052(d), which makes no reference to classification”). This factor is also neutral.
E. Summary
We have considered all of the arguments and evidence of record. Because we have
found that the marks at issue are similar in appearance, sound, connotation, and
commercial impression, and that Applicant’s goods are related to Registrant’s goods
and that they would move in the same or overlapping trade channels and would be
Serial No. 87605498
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offered to the same or overlapping classes of purchasers, we conclude that Applicant’s
mark, as used in connection with the goods identified in its involved application, so
resembles the cited mark as to be likely to cause confusion or mistake, or to deceive
under Section 2(d) of the Trademark Act. When analyzing these factors, the
overriding concerns are not only to prevent buyer confusion as to the source of the
goods, but also to protect the registrant from adverse commercial impact due to use
of a similar mark by a newcomer. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d
1687, 1690 (Fed. Cir. 1993).
III. Decision
The refusal to register Applicant’s mark STOIC is affirmed.