Brushy Mountain Group, LLC

Trademark Trial and Appeal Board

Jun 21, 2019

87558712 (T.T.A.B. Jun. 21, 2019)

This Opinion is not a
Precedent of the TTAB

Mailed: June 21, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Brushy Mountain Group, LLC
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Serial Nos. 87558712, 87587918, 87587946 and 875880111
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Mathew D. Brownfield of Grant, Konvalinka & Harrison P.C.,
for Brushy Mountain Group, LLC.
Marco Wright, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Wolfson, Shaw and Pologeorgis,
Administrative Trademark Judges.

Opinion by Shaw, Administrative Trademark Judge:
Brushy Mountain Group, LLC (“Applicant”) seeks registration on the Principal
Register of the standard character marks BRUSHY MOUNTAIN2 and BRUSHY

1 We consolidate the appeals and decide them in a single opinion because they involve
common issues of law and fact with similar records. See In re Anderson, 101 USPQ2d 1912,
1915 (TTAB 2012) (Board sua sponte consolidated two appeals).
2 Application Serial No. 87558712, filed on August 7, 2017 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1(b), based upon Applicant’s bona fide intent to use the mark in
commerce.
Serial Nos. 87558712, 87587918, 87587946 and 87588011
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MTN3 for:
Alcohol distillery services; Beer making and brewing services;
Spirits distillery services, in International Class 40;
Conducting guided tours of a prison and distillery, in
International Class 41; and
Restaurant services rendered at a bed and breakfast inn, in
International Class 43.
Applicant also seeks registration on the Principal Register of the standard
character marks BRUSHY MOUNTAIN4 and BRUSHY MTN5 for:
Arranging and conducting of concerts; Entertainment,
namely, live music concerts; Provision of information relating
to live performances, road shows, live stage events, theatrical
performances, live music concerts and audience participation
in such events, in International Class 41.
The Examining Attorney refused registration to all of the marks under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d), as to the services in International
Classes 40 and 41, excerpt for the services of “Conducting guided tours of a prison,”
because of a likelihood of confusion with Registration No. 1319934 for the mark

3 Application Serial No. 87588011, filed on August 29, 2017 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1(b), based upon Applicant’s bona fide intent to use the mark in
commerce.
4 Application Serial No. 87587918, filed on August 29, 2017 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1(b), based upon Applicant’s bona fide intent to use the mark in
commerce.
5 Application Serial No. 87587946, filed on August 29, 2017 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1(b), based upon Applicant’s bona fide intent to use the mark in
commerce.
Serial Nos. 87558712, 87587918, 87587946 and 87588011
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for services identified as “Organizing and Conducting a Festival with Concerts, Craft
Displays, Demonstrations of Preparing and Cooking Apples for Various Food
Preparations and Contests,” in International Class 41. The cited mark consists of the
wording BRUSHY MOUNTAIN APPLE FESTIVAL in red letters with the design of
a red apple.6
When the refusals were made final, Applicant appealed. The cases are fully
briefed. We affirm the refusals.
Analysis
Our determination of the issue of likelihood of confusion is based on an analysis
of all the probative facts in evidence 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); see also In re
Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003). In any
likelihood of confusion analysis, two key considerations are the similarities between
the services and the similarities between the marks. See 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

6 Issued February 12, 1985, twice renewed. The registration makes no claim to the exclusive
right to use “Apple Festival” and the depiction of an apple, apart from the mark as shown.
The drawing is lined for the color red.
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characteristics of the goods [or services] and differences in the marks.”); see also In re
i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The
likelihood of confusion analysis considers all DuPont factors for which there is record
evidence but ‘may focus … on dispositive factors, such as similarity of the marks and
relatedness of the goods [or services]’”) (quoting Herbko Int’l, Inc. v. Kappa Books,
Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
A. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.

We first consider the DuPont factor relating to the similarity of the marks. In
comparing the marks we must consider the appearance, sound, connotation and
commercial impression of the marks at issue. Palm Bay Imps. Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). The emphasis of our analysis must be on the recollection of the average
purchaser who normally retains a general, rather than specific, impression of the
marks. Although we consider the marks as a whole, “in articulating reasons for
reaching a conclusion on the issue of confusion, there is nothing improper in stating
that, for rational reasons, more or less weight has been given to a particular feature
of a mark. . . .” In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985).
Applicant’s marks are BRUSHY MOUNTAIN and BRUSHY MTN, in standard
characters. Registrant’s mark is BRUSHY MOUNTAIN APPLE FESTIVAL with an
apple design as shown above. As an initial matter, we find that all of the marks share
the same commercial impression, that is, the name of a mountain. The abbreviation
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MTN in two of Applicant’s marks does not change the commercial impression of those
marks. As the Examining Attorney has established, the abbreviation for the word
“mountain” is “mtn.”7
The dominant element of Applicant’s marks is the term BRUSHY MOUNTAIN
because it is the only element in the marks. It is also the dominant portion of
Registrant’s mark. The term APPLE FESTIVAL and the apple design in Registrant’s
mark are less significant because they are descriptive of Registrant’s services and
have been disclaimed. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that
the ‘descriptive component of a mark may be given little weight in reaching a
conclusion on the likelihood of confusion.’”). Thus, Applicant has simply adopted the
dominant portion of Registrant’s mark. Further, BRUSHY MOUNTAIN, as the first
term in Registrant’s mark and the only term in Applicant’s marks, is likely to be
noticed and recognized by consumers. See In re Detroit Athletic Co., 903 F.3d 1297,
128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (finding “[t]he identity of the marks’ two
initial words is particularly significant because consumers typically notice those
words first”) (citing Palm Bay Imps., 73 USPQ2d at 1692 (finding similarity between
VEUVE ROYALE and two VEUVE CLICQUOT marks in part because VEUVE
“remains a ‘prominent feature’ as the first word in the mark and the first word to
appear on the label”); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d
874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks,

7 See Ser. No. 87588011, Office Action dated May 25, 2018, pp. 206-12.
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consumers will first notice the identical lead word)). Moreover, Applicant’s marks
appear in standard characters and, therefore, may be used in any form including
Registrant’s typeface.
The fact that Registrant’s mark has additional matter is less significant because
of consumers’ propensity to shorten trademarks. Consumers could shorten
Registrant’s mark to refer to the festival as the BRUSHY MOUNTAIN FESTIVAL,
or simply, BRUSHY MOUNTAIN. See In re Mighty Leaf Tea, 601 F.3d 1342, 94
USPQ2d 1257, 1259 (Fed. Cir. 2010) (“ML is likely to be perceived as a shortened
version of ML MARK LEES when used on the same or closely related skin care
products.”); In re Bay State Brewing Co., 117 USPQ2d 1958, 1961 (TTAB 2016) (“[W]e
also keep in mind the penchant of consumers to shorten marks.”).
When we compare the marks in their entireties, we find the marks are similar in
sound, connotation and commercial impression, in that both Applicant’s marks and
Registrant’s mark suggest an association with a place called BRUSHY MOUNTAIN.
“[S]imilarity as to one or more of [the du Pont] factors may be sufficient to support a
finding that the marks are similar or dissimilar.” Recot, Inc. v. M.C. Becton, 214 F.3d
1322, 1329, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000). Accordingly, we find BRUSHY
MOUNTAIN and BRUSHY MTN to be similar to Registrant’s mark, BRUSHY
MOUNTAIN APPLE FESTIVAL and design, for purposes of the DuPont factor
relating to similarity in appearance, sound, connotation and commercial impression.
This favors a finding of likelihood of confusion.
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B. The similarity or dissimilarity and nature of the services.

We next consider the similarity of the services. We base our evaluation on the
services as they are identified in the applications and registration. Stone Lion Capital
Partners, LP v. Lion Capital LLP, 76 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014); Octocom Sys., Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990). (“The authority is legion that the question of
registrability of an applicant’s mark must be decided on the basis of the identification
of goods set forth in the application regardless of what the record may reveal as to
the particular nature of an applicant’s goods, the particular channels of trade or the
class of purchasers to which the sales of goods are directed.”).
Registrant’s services are “Organizing and Conducting a Festival with Concerts,
Craft Displays, Demonstrations of Preparing and Cooking Apples for Various Food
Preparations and Contests,” in International Class 41. The refusals have been limited
to the following of Applicant’s services:
Alcohol distillery services; Beer making and brewing services;
Spirits distillery services, in International Class 40;
Conducting guided tours of a [. . .] distillery, in International
Class 41; and
Arranging and conducting of concerts; Entertainment,
namely, live music concerts; Provision of information relating
to live performances, road shows, live stage events, theatrical
performances, live music concerts and audience participation
in such events, in International Class 41.
Beginning with Applicant’s distillery, beer making, brewing, and distillery tour
services, the Examining Attorney argues that Applicant’s and Registrant’s services
commonly emanate from a single source. In support of the refusal, the Examining
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Attorney has made of record a number of web page excerpts showing that distilleries
and breweries conduct festivals and give tours to promote their products. The
following examples are illustrative:8
• Asmithbowman.com – Inviting consumers to “[e]xperience the pioneering
spirit of our historic family-owned distillery;” promoting their “7th Annual
Father’s Day Festival” featuring distillery tours, local beer and wine, live
music, food, and games; and also offering distillery tours;
• Rebeccacreekdistillery.com – Claiming to be “one of the largest artisan
spirits producers in the region;” offering distillery tours; promoting their
“Boot Fest 2015” featuring a concert, food and beverages, and events such
as face-painting, balloon artists and games;
• Bradforddistillery.com – Noting that “[p]roducing local, artisanal spirits is
[their] life’s passion;” promoting festivals; and offering tours;
• Stonebrewing.com – Claiming to be “one of the largest craft breweries in
the United States;” offering brewery tours; promoting its beer festival
featuring beer, food, live music;
• Twobrothersbrewing.com – Promoting “Two Brothers Summer Festival
2017” featuring live music, beer and activities; and offering brewery tours;
• Harpoonbrewery.com – Promoting its festivals; and offering brewery tours;
• Drinkrangercreek.com – Promoting its festivals featuring music concerts;
and offering distillery and brewery tours; and
• Luxrowdistillers.com – Promoting festivals; and offering distillery tours.
The foregoing web page excerpts establish that distillers and brewers often
conduct festivals and give tours to promote their products. These festivals appear to
have musical concerts, as well as food and drink, as does Registrant’s festival. Thus,
consumers, upon encountering Applicant’s distillery, beer brewing, and tour services

8 Ser. No. 87558712, Office Action of May 25, 2018, pp. 29-129.
Serial Nos. 87558712, 87587918, 87587946 and 87588011
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could think that Registrant’s festival, which also features music, food and beverages,
was related.
Applicant argues that its services “have nothing to do with a ‘festival’ of any kind”9
and therefore its services would never be confused with Registrant’s festival. In
particular, Applicant points out that Registrant’s festival is only offered once each
year in the same location, is in a different state, and Applicant does not participate
in the festival. This argument is unpersuasive. The term “festival” is broadly defined,
inter alia, as “[a]n event that is held to celebrate a particular thing or activity.”10 Such
a broad definition encompasses services such as Applicant’s regardless of the
particulars of Registrant’s festival. Moreover, it is well settled that the respective
services need not be identical or even competitive to find a likelihood of confusion. See
On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 1086, 56 USPQ2d 1471, 1475
(Fed. Cir. 2000); Recot, Inc. v. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898
(Fed. Cir. 2000). They need only be “related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
mistaken belief that [the goods and/or services] emanate from the same source.”
Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1369, 101 USPQ2d 1713,
1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724
(TTAB 2007)). The evidence of record shows that Applicant’s and Registrant’s services
are related because they commonly emanate from a single source. In addition,

9 Ser. No. 87558712, Applicant’s Br., p. 4, 4 TTABVUE 5.
10 Id. at 6, citing the McMillan Dictionary (2018), 4 TTABVUE 7.
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although Applicant states that it does not conduct festivals, its web page indicates an
intent to pursue a number of business ventures including “Festivals” as well as a
“Brewery,” “Distillery,” and “Tours.” See below.11

Regarding Applicant’s applications for services related to arranging and
conducting concerts, live performances, road shows, live stage events, and theatrical

11 Ser. No. 87558712, Office Action dated November 15, 2017, p. 19.
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performances, we find these services are even more closely related to Registrant’s
services. Applicant’s services of “Arranging and conducting of concerts” and
“Entertainment, namely, live music concerts” are nearly identical to Registrant’s
“Organizing and Conducting a Festival with Concerts.” The only difference is that
Registrant’s concerts are provided within the context of a festival. But musical
concerts are a significant part of most festivals. And again, Applicant’s own web site
indicates that it considers festivals to be within its logical zone of expansion.
Applicant also argues that the respective services are different because its services
have “nothing to do with apples.”12 This argument is unpersuasive as well. The fact
that some of Registrant’s services promote apples does not overcome the fact that
other services identified in the cited registration are not so limited. If there is a
likelihood of confusion with respect to any of Applicant’s identified services the
refusal of registration must be affirmed. It is not necessary for the Examining
Attorney to prove likelihood of confusion with respect to each of the services identified
in Applicant’s single-class applications. See Tuxedo Monopoly, Inc. v. Gen. Mills Fun
Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981). Here, both the applications
and registration identify the services of promoting concerts.
In view of the foregoing, the DuPont factor relating to the similarity of the services
favor a finding of likelihood of confusion.

12 Ser. No. 87587918, Applicant’s Br., p. 5, 4 TTABVUE 6.
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C. Conclusion

Given the dominance of the term BRUSHY MOUNTAIN in all of the marks, we
find it likely that consumers familiar with Registrant’s festival could presume that
Applicant’s services were related. Because the marks are similar and the services are
related, there is a likelihood of confusion between Applicant’s BRUSHY MOUNTAIN
and BRUSHY MTN marks and the mark BRUSHY MOUNTAIN APPLE FESTIVAL
and design in the cited registration.

Decision: The refusal to register Applicant’s marks under Section 2(d) of the
Lanham Act is affirmed. Application Serial Numbers 87587918 and 87587946 are
refused registration in their entirety. Application Serial Numbers 87558712 and
87588011 are refused registration in part but are approved for publication for the
following identified services:
Conducting guided tours of a prison and distillery, in
International Class 41; and
Restaurant services rendered at a bed and breakfast inn, in
International Class 43.