Bottle Logic Brewing, LLCv.Platform Beers, LLC

Trademark Trial and Appeal Board

Aug 2, 2019

91235429 (T.T.A.B. Aug. 2, 2019)

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
General Email: TTABInfo@uspto.gov
Gehring/Faint

July 17, 2019

Opposition No. 91235429

Bottle Logic Brewing, LLC

v.

Platform Beers, LLC

Before Bergsman, Heasley and Dunn
Administrative Trademark Judges.

By the Board:

Applicant/Counterclaim Petitioner Platform Beers, LLC (Platform) seeks
registration of the marks , filed May 26, 2016, and , filed
June 1, 2016, for “beer” in International Class 32.1 Opposer/Counterclaim
Respondent Bottle Logic, LLC (Bottle Logic) owns Registration No. 4653890 for the

1 Application Serial Nos. 87050742 and 87056210 both filed under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), and claiming dates of first use anywhere and first use
in commerce on July 17, 2013.

Platform disclaimed the exclusive right to use the term “Beer Co.” in both applications.
THIS ORDER IS NOT A
PRECEDENT OF THE
TTAB
Opposition No. 91235429

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mark , in International Classes 32 for beer and 43 for bar tasting room and
restaurant services,2 and Registration No. 5001783 for the mark in
International Class 32 for beer.3 Bottle Logic opposes registration of Platform’s
marks, alleging a likelihood of confusion under Trademark Act § 2(d).4 By its answer,
Platform denies the salient allegations in the Notice of Opposition.5 Platform also
filed counterclaims against both of Bottle Logic’s registrations alleging in the
alternative likelihood of confusion.6 Bottle Logic filed an answer denying the
allegations of the counterclaim.
Bottle Logic has moved for partial summary judgment on the ground that there is
no genuine dispute as to its priority.7 Platform has moved for summary judgment on
the ground that there is no genuine dispute that the parties’ marks are dissimilar.8

2 Registration No. 4653890 registered December 9, 2014 based on an application filed August
20, 2013.

3 Registration No. 5001783 registered July 19, 2016 based on an application filed September
09, 2015.

4 1 TTABVUE 7.

5 9 TTABVUE 2, 34 TTABVUE 1.

6 9 TTABVUE 4.

7 23 TTABVUE.

8 34 TTABVUE.
Opposition No. 91235429

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A. Motion to Amend Dates of Use in Opposed Applications
Accompanying Platform’s response to Bottle Logic’s motion for summary
judgment is a declaration by which Justin Carson, President of Platform, avers that
Platform recently learned of the error in its dates of use in its opposed applications,
and that “Platform began using both of its marks at issue in this proceeding in
connection with the sale of beer as early as July 4, 2014.”9 Accordingly, the Board
construes this sworn statement as a motion to amend both application Serial Nos.
87050742 and 87056210 to list July 4, 2014 as its date of first use anywhere and in
commerce. Because Bottle Logic’s reply brief seeks entry of judgment, as discussed
below, based on the admission that Platform lacks priority, the Board construes this
as consent to the amendment. Trademark Rule 2.133(a), 37 C.F.R. § 2.133(a).
In an application under Trademark Act Section §1(a), the applicant may amend
the dates of use to adopt a date of use that is earlier than the date originally stated
or later than the date originally stated, but not a date of use subsequent to the
application filing date. Trademark Rule 2.71(c)(1), 37 C.F.R. § 2.71(c)(1); Mason Eng’g
and Design Corp. v. Mateson Chem. Corp., 225 USPQ 956, 957 n.4 (TTAB 1985). Here,
the consented amendment is supported by the required declaration and seeks to
amend to later dates of use before the application filing dates. The amendment to list
July 4, 2014 as the date of first use anywhere and in commerce in both application

9 33 TTABVUE 10. The declaration goes on to aver that “Platform began selling cans of beer
bearing those same marks at least as early as December 15, 2014.” If this second date is not
merely additional explanation, but actually the date of first use in commerce, Platform is
ordered to promptly notify the Board with an amended declaration.
Opposition No. 91235429

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Serial Nos. 87050742 and 87056210 is approved and entered. See Trademark Rule
2.133(a).
B. Summary Judgment Standard
Summary judgment is appropriate where the moving party shows the absence of
any genuine dispute as to any material fact, and that it is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317,
323- 324 (1986); Freki Corp. N.V. v. Pinnacle Entm’t, Inc., 126 USPQ2d 1697, 1700
(TTAB 2018). A factual dispute is genuine if, on the evidence of record, a reasonable
fact finder could resolve the matter in favor of the non-movant. Opryland USA, Inc.
v. Great Am. Music Show, Inc., 970 F.2d 847, 23 USPQ2d 1471, 1472 (Fed. Cir. 1992).
In deciding a motion for summary judgment, the Board may not resolve any factual
dispute; it may only determine whether a genuine dispute of material fact exists. See,
e.g., Meyers v. Brooks Shoe, Inc., 912 F.2d 1459, 16 USPQ2d 1055, 1056 (Fed. Cir.
1990) (factual dispute should be reserved for trial).
When the movant has supported its motion with sufficient evidence that, if
unopposed, indicates there is no genuine dispute of material fact and that the moving
party is entitled to judgment as a matter of law, the burden then shifts to the non-
moving party to demonstrate the existence of a genuine dispute of material fact to be
resolved at trial. Enbridge, Inc. v. Excelerate Energy LP, 92 USPQ2d 1537, 1540
(TTAB 2009); see also Opryland, 23 USPQ2d at 1472-73 (non-movant not required to
present its entire case but just sufficient evidence to show evidentiary conflict as to
material fact in dispute). Just because both parties have moved for summary
Opposition No. 91235429

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judgment does not mean that there are no genuine disputes of material fact, and does
not require that judgment to be entered. See University Book Store v. University of
Wis. Bd. of Regents, 33 USPQ2d 1385, 1389 (TTAB 1994).
As a result of Platform’s counterclaim, Bottle Logic’s pleaded registrations form
part of the record of this case without any action by the parties. Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1). Thus Bottle Logic has
standing. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844
(Fed. Cir. 2000). Platform, as a counterclaimant, has standing inherent in its position
as defendant in the original proceeding. Harry Winston, Inc. v. Bruce Winston Gem
Corp., 111 USPQ2d 1419, 1428 (TTAB 2014).
C. Bottle Logic’s Motion for Summary Judgment of Platform’s
Counterclaims

1. Granted as to Registration No. 4653890
In response to Bottle Logic’s motion for partial summary judgment on Platform’s
counterclaim to cancel Bottle Logic’s Registration No. 4653890, Platform concedes
that it made an “unintentional mistake” in the dates of first use listed in its opposed
applications, and in pleading priority over the ‘890 registration. More specifically,
Platform states:10
[T]he subject marks of Serial Nos. 87050742 and 87056210 were not in use in
commerce on beer before Opposer’s August 20, 2013 filing date for Registration
No. 4,653,890. Platform therefore concedes this portion of the motion and
agrees that its claim of priority for Serial Nos. 87050742 and 87056210 over
Registration No. 4,653,890 should be dismissed.

10 33 TTABVUE 4.

Opposition No. 91235429

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In view of Platform’s amendment of its opposed applications, and admission that it
cannot prove prior use, Bottle Logic’s motion for summary judgment on Platform’s
counterclaim to cancel Registration 4653890 is granted. The counterclaim to cancel
Registration 4653890 is dismissed.
2. Denied as to Registration No. 5001783
As set forth above, Bottle Logic’s Registration No. 5001783 has a constructive use
date of September 9, 2015. See, e.g., L. & J.G. Stickley, Inc. v. Cosser, 81 USPQ2d
1956 (TTAB 2007) (noting filing dates of applications are significant because
registrant can rely on them for priority). In moving for summary judgment on
priority, Bottle Logic presents no evidence showing that it is entitled to an earlier
priority date. See Trademark Rule 2.122(b)(2) (“the allegation in an application for
registration, or in a registration, of a date of use is not evidence on behalf of the
applicant or registrant; a date of use of a mark must be established by competent
evidence.”). Because Platform provides the declaration of its President averring that
Platform has been using both of its marks in connection with beer since July 4, 2014
and began selling cans of beer bearing those marks as early as December 15, 2014,
Bottle Logic’s motion for summary judgment fails to present a prima facie case of
priority as to this registration.
Accordingly, Bottle Logic’s motion for summary judgment on Platform’s
counterclaim to cancel Registration 5001783 is denied.

Opposition No. 91235429

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D. Platform’s Cross-Motion for Summary Judgment
Platform asserts the parties’ marks are so different that, on their face, there is no
likelihood of confusion. Both parties’ marks feature an Edison lightbulb to identify
beer. Yet, there are some differences between the marks. Platform’s ‘742 mark
features a modern/clean aesthetic, utilizing sharp, bold lines that evoke an
industrial/modern motif. The word PLATFORM is inside a rectangle and a smaller
Edison lightbulb is placed atop the rectangle, centered, and uses a wheat leaf as the
filament for the bulb. Platform’s ‘210 mark uses the same bulb in the background
with PLATFORM in front of it, inside multiple (5) concentric circles of varying
thickness.
Bottle Logic’s ‘890 mark has a punk/playful feel. The words BOTTLE LOGIC are
slightly parabolic with an upwards trend and the mark also features an Edison
lightbulb. Inside the bulb is a beer bottle. The mark features two lightning bolts
coming out of both sides of the bottom of the bulb with “est.” above the left bolt and
“2013” above the right bolt. Outside of the bulb, the marks do not sound or look alike.
These differences, however, do not rise to the required “differ so substantially”
standard that would allow summary judgment on this issue. Kellogg Co. v. Pack’em
Enters, 951 F.2d 330, 21 USPQ2d 1142, 1144, (Fed. Cir. 1991). Platform supplied
TSDR printouts of seven live registered marks that use a light bulb in relation to
beer, but only one of the marks uses an Edison bulb. Platform also provided eight
more examples, in the form of webpage printouts showing lightbulbs used in
conjunction with beer, but only one features an Edison bulb. Under Jack Wolfskin,
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the moving party is required to produce voluminous evidence to prove that a mark’s
impression is weak. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v.
New Millennium Sports, S.L.U., 797 F.3d 1363, 1372, 116 USPQ2d 1129, 1136, (Fed.
Cir. 2015).
Platform has failed to provide evidence demonstrating that the marks are so
different that judgment should be granted as a matter of law. There are enough
differences to create a genuine dispute of material fact as to whether the marks are
confusingly similar. The cross-motion for summary judgment is denied
E. Decision
In summary, Bottle Logic’s motion for summary judgment as to the issue of
priority is granted with respect to the ‘890 registration and is denied with respect
to the ‘783 registration.11 Platform’s cross-motion for summary judgment on the
differences between the marks is denied.
F. Schedule
Proceedings are resumed. Dates are reset as set out below.
Expert Disclosures Due 9/3/2019
Discovery Closes 10/3/2019
Pretrial Disclosures Due for Party in Position of Plaintiff in Original
Claim 11/17/2019

11 Evidence submitted in connection with the motion for summary judgment is of record only
for consideration of that motion. To be considered at final hearing, all evidence must be
properly introduced during the appropriate trial period. See Land O’ Lakes, Inc. v. Hugunin,
88 USPQ2d 1957, 1960 n.7 (TTAB 2008); University Games Corp. v. 20Q.net, Inc., 87 USPQ2d
1465, 1468 n.4 (TTAB 2008); Levi Strauss & Co. v. R. Josephs Sportswear, Inc., 28 USPQ2d
1464 (TTAB 1993). Furthermore, the fact that we have identified certain genuine disputes of
material fact sufficient to deny the motion should not be construed as a finding that these
are necessarily the only issues that remain for trial.
Opposition No. 91235429

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30-day Trial Period Ends for Party in Position of Plaintiff in Original
Claim 1/1/2020
Pretrial Disclosures Due for Party in Position of Defendant in Original
Claim and in Position of Plaintiff in Counterclaim 1/16/2020
30-day Trial Period Ends for Party in Position of Defendant in Original
Claim, and in Position of Plaintiff in Counterclaim 3/1/2020
Pretrial Disclosures Due for Rebuttal of Party in Position of Plaintiff in
Original Claim and in Position of Defendant in Counterclaim 3/16/2020
30-day Trial Period Ends for Rebuttal of Party in Position of Plaintiff in
Original Claim, and in Position of Defendant in Counterclaim 4/30/2020
Pretrial Disclosures Due for Rebuttal of Party in Position of Plaintiff in
Counterclaim 5/15/2020
15-day Trial Period Ends for Rebuttal of Party in Position of Plaintiff in
Counterclaim 6/14/2020
Opening Brief for Party in Position of Plaintiff in Original Claim Due 8/13/2020
Combined Brief for Party in Position of Defendant in Original Claim
and Opening Brief as Plaintiff in Counterclaim Due 9/12/2020
Combined Rebuttal Brief for Party in Position of Plaintiff in Original
Claim and Brief as Defendant in Counterclaim Due 10/12/2020
Rebuttal Brief for Party in Position of Plaintiff in Counterclaim Due 10/27/2020
Request for Oral Hearing (optional) Due 11/6/2020

Generally, the Federal Rules of Evidence apply to Board trials. Trial testimony is
taken and introduced out of the presence of the Board during the assigned testimony
periods. The parties may stipulate to a wide variety of matters, and many
requirements relevant to the trial phase of Board proceedings are set forth in
Trademark Rules 2.121 through 2.125. These include pretrial disclosures, the
manner and timing of taking testimony, matters in evidence, and the procedures for
submitting and serving testimony and other evidence, including affidavits,
declarations, deposition transcripts and stipulated evidence. Trial briefs shall be
submitted in accordance with Trademark Rules 2.128(a) and (b). Oral argument at
Opposition No. 91235429

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final hearing will be scheduled only upon the timely submission of a separate notice
as allowed by Trademark Rule 2.129(a).
***