Buffalo Bayou Distilleries, LLC

Trademark Trial and Appeal Board

Jul 30, 2019

87489082 (T.T.A.B. Jul. 30, 2019)

Mailed: July 30, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Buffalo Bayou Distilleries, LLC
_____

Application Serial No. 87489082
_____

John S. Egbert of Egbert, McDaniel & Swartz, PLLC
for Buffalo Bayou Distilleries, LLC.

Yocheved Bechhofer, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney
_____

Before Bergsman, Pologeorgis, and English,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Buffalo Bayou Distilleries, LLC (“Applicant”) seeks registration on the Principal
Register of the mark CABOOZE (in standard characters) for “alcoholic beverages,
namely, spirits,” in Class 33.1

1 Application Serial No. 87489082 was filed June 14, 2017 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona intent to use the
mark in commerce.
Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs and orders
on appeal are to the Board’s TTABVUE docket system.
This Opinion Is Not a
Precedent of the TTAB
Serial No. 87489082 No.

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The Examining Attorney refused to register Applicant’s mark under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so
resembles the marks in the three registrations set forth below, owned by the same
registrant, as to be likely to cause confusion:
1. Registration No. 4678396 for the mark CABOOSE BREWING CO. and design,
reproduced below, for “beer,” in Class 32;2

The mark consists of a circular design with train tracks and a wood grain pattern,
above the stylized wording “CABOOSE BREWING CO.”
Registrant disclaimed the exclusive right to use the term “Brewing Co.”
2. Registration No. 4689937 for the mark CABOOSE BREWING CO. (in standard
characters) for “beer,” in Class 32.3 Registrant disclaimed the exclusive right to use
the term “Brewing Co.”
3. Registration No. 5218400 for the mark CABOOSE BREWING CO. and design,
reproduced below, for “beer,” in Class 32;4

2 The registration issued January 25, 2015.
3 The registration issued February 17, 2015.
4 The registration issued March 21, 2017.
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The mark consists of a circular design with two concentric outer circles, with train
tracks inside, above the stylized wording “CABOOSE BREWING CO.”
Registrant disclaimed the exclusive right to use the term “Brewing Co.”
Our determination under Section 2(d) is based on an analysis of all of the
probative facts in evidence that are relevant to the factors bearing on likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S.
___, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling
Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each
DuPont factor that is relevant or for which there is evidence of record. See M2
Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir.
2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB
2015) (“While we have considered each factor for which we have evidence, we focus
our analysis on those factors we find to be relevant.”). “[E]ach case must be decided
on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v.
Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973) (internal citations removed).
In any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods or services. See In re
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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.”); 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.’”) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
Because the designs in the marks in two of the cited registrations arguably contain
additional points of difference with Applicant’s mark, we confine our analysis to the
issue of likelihood of confusion between Applicant’s mark and the cited registration
for the mark in standard character form. That is, if confusion is likely between those
marks, there is no need for us to consider likelihood of confusion with the cited marks
with design elements; the standard character mark would be a sufficient basis for us
to affirm the refusal of registration. Conversely, if there is no likelihood of confusion
between Applicant’s mark and the cited mark in standard character form, then there
would be no likelihood of confusion with the marks with design elements. See, e.g., In
re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
I. The strength of the CABOOSE BREWING CO. mark including the number
and nature of similar marks in use on similar goods.
To determine the conceptual strength of the cited mark under the sixth DuPont
factor, we evaluate its intrinsic nature, that is, where it lies along the generic-
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descriptive-suggestive-arbitrary-fanciful continuum of words. Word marks that are
arbitrary, fanciful, or suggestive are “held to be inherently distinctive.” Wal-Mart
Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 54 USPQ2d 1065, 1068 (2000); see
also, In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1684 (Fed. Cir.
2010) (“In general, trademarks are assessed according to a scale formulated by Judge
Friendly in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 189 USPQ
759 (2d Cir. 1976), which evaluates whether word marks are ‘arbitrary’ or ‘fanciful,’
‘suggestive,’ ‘descriptive,’ or ‘generic.’”). We also look to evidence pertaining to the
number and nature of similar marks in use on similar goods or services.
We focus on analysis on the word “Caboose” because the term “Brewing Co.” when
used in connection with “beer” is merely descriptive. The word “Caboose” is defined
as follows: 5
1: a ship’s galley
2: a freight-train car attached usually to the rear
mainly for the use of the train crew
3: one that follows or brings up the rear
4: buttocks
When used in connection with Registrant’s beer, the word “Caboose” is arbitrary
because it is a “known word used in an unexpected or uncommon way.” Nautilus Grp.,
Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 71 USPQ2d 1173 (Fed. Cir. 2004)
(defining an arbitrary mark as a “known word used in an unexpected or uncommon

5 Merriam-Webster.com attached to Applicant’s September 6, 2018 Request for
Reconsideration (TSDR 12).
Serial No. 87489082 No.

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way” and observing that such marks are typically strong); see also Palm Bay Imps.
Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689,
1692 (Fed. Cir. 2005) (arbitrary terms are conceptually strong trademarks).
Applicant argues to the contrary contending that there are numerous CABOO-
formative marks registered in the USPTO and in the marketplace, “which is
indicative of a weak mark that is used to describe numerous goods and services
outside of the scope of the goods sold under the cited mark.”6 To support its argument,
Applicant submitted copies of three registrations, owned by two entities, listed below:
• Registration No. 3335917 for the mark RED CABOOSE and Registration No.
526453 for the mark RED CABOOSE WINERY AND VINEYARDS both for wines;
and
• Registration No. 4925652 for the mark LOOSE CABOOSE LAGER for beer.7

6 Applicant’s Brief, p. 15 (5 TTABVUE 16).
7 March 14, 2018 Response to Office Action (TSDR 27-32). Applicant also proffered that the
USPTO database includes 41 CABOOSE registrations and applications of which eight are in
Classes 32 and 33. However, Applicant did not include copies of those registrations and
applications and because we do not take judicial notice of registrations and applications
residing in the USPTO database, we cannot consider them. In re Wada, 48 USPQ2d1689,
1689 n.2 (TTAB 1998) (holding that the Board will not take judicial notice of the thousands
of registered marks incorporating the term NEW YORK for goods and services that do not
originate there), aff’d, 194 F.3d 1297, 52 USPQ2d 1539 (Fed. Cir.1999); Beech Aircraft Corp.
v. Lightning Aircraft Co. Inc., 1 USPQ2d 1290 (TTAB 1986) (“[W]e do not take judicial notice
of application and registration files that reside in the Patent and Trademark Office on the
basis of their mere identification in briefs, pleadings, and evidentiary submissions.”); In re
Duofold, Inc., 184 USPQ 638 (TTAB 1974). Thus, Applicant’s argument is not supported by
this evidence.
Further, pending applications are evidence only that the applications were filed on a certain
date. Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007); Interpayment
Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003).
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Three third-party registrations owned by two entities do not prove that the word
“Caboose” is so weak and diluted that Registrant’s mark CABOOSE BREWING CO.
is entitled to only a narrow scope of protection. Compare Jack Wolfskin Ausrustung
Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363,
116 USPQ2d 1129, 1136 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 982, (2016) (“Jack
Wolfskin presented voluminous evidence of paw print design elements that have been
registered and used in connection with clothing.”); Juice Generation, Inc. v. GS
Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1673 n.1, 1674-75 (Fed. Cir. 2015)
(“Juice Generation introduced evidence of a fair number of third-party uses of marks
containing “peace” and “love” followed by a third, product-identifying term”
demonstrating that “a considerable number of third parties [in excess of 20] use
similar marks was shown in uncontradicted testimony.”).
Because Registrant’s CABOOSE BREWING CO. mark is an arbitrary mark that
is conceptually strong, we find that Registrant’s mark is entitled to the broad scope
of protection afforded an inherently distinctive or arbitrary mark. See In re Opus One
Inc., 60 USPQ2d 1812, 1813-14 (TTAB 2001) (arbitrary mark is considered strong
and entitled to a “broad scope of protection”).
II. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.
We now turn to the DuPont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Davia,
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110 USPQ2d 1810, 1812 (TTAB 2014); 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).
In comparing the marks, we are mindful that “[t]he 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.” Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs.
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir.
2012)). The proper focus is on the recollection of the average customer, who retains a
general rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas
Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v.
Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver &
Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co.,
190 USPQ 106, 108 (TTAB 1975). Because the goods at issue are beer and spirits, the
average customer is an ordinary consumer.
Applicant is seeking to register the mark CABOOZE and the cited mark is
CABOOSE BREWING CO. The dominant portion of Registrant’s mark is the word
“Caboose” because the term “Brewing Co.” is merely descriptive and Registrant has
disclaimed the exclusive right to use it. It is well-settled that disclaimed, descriptive
matter may have less significance in likelihood of confusion determinations. See In re
Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing
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In re Dixie Rests., Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir.
1997)); 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.’”) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 752 (Fed. Cir. 1985)); In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531,
1533-34 (Fed. Cir. 1997); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB
2001) (disclaimed matter is often “less significant in creating the mark’s commercial
impression”). There is nothing improper in stating that, for rational reasons, more or
less weight has been given to a particular feature of a mark, such as a common
dominant element, provided the ultimate conclusion rests on a consideration of the
marks in their entireties. Nat’l Data Corp., 224 USPQ at 751; see also In re Viterra
Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012).
The significance of the word “Caboose” as the dominant element of Registrant’s
mark is further reinforced by its location as the first part of the mark. See In re Detroit
Athletic Co., 128 USPQ2d at 1049 (finding “the identity of the marks’ two initial words
is particularly significant because consumers typically notice those words first”);
Palm Bay Imps., 73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark
VEUVE CLICQUOT because “veuve” is 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,
consumers will first notice the identical lead word); In re Integrated Embedded, 120
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USPQ2d 1504, 1513 (TTAB 2016) (noting that the dominance of BARR in the mark
BARR GROUP is reinforced by its location as the first word in the mark); Presto
Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often
the first part of a mark which is most likely to be impressed upon the mind of a
purchaser and remembered”).
Finally, some consumers will refer to Registrant’s beer as CABOOSE because they
will shorten CABOOSE BREWING CO. to CABOOSE. “[U]sers of language have a
universal habit of shortening full names – from haste or laziness or just economy of
words. Examples are: automobile to auto; telephone to phone; necktie to tie; gasoline
service station to gas station.” In re Abcor Dev. Corp., 588 F.2d 511, 200 USPQ 215,
219 (CCPA 1978) (J. Rich, concurring).
[C]ompanies are frequently called by shortened names,
such as Penney’s for J.C. Penney’s, Sears for Sears and
Roebuck (even before it officially changed its name to Sears
alone), Ward’s for Montgomery Ward’s, and Bloomies for
Bloomingdales.
Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333 (TTAB 1992); see
also Big M Inc. v. U.S. Shoe Co., 228 USPQ 614, 616 (TTAB 1985) (“[W]e cannot
ignore the propensity of consumers to often shorten trademarks and, in the present
case, this would be accomplished by dropping the ‘T.H.’ in referring to registrant’s
stores [T.H. MANDY].”).
CABOOZE is similar in appearance to CABOOSE. Slight differences in marks do
not normally create dissimilar marks. See In re Great Lakes Canning, Inc., 227 USPQ
483, 485 (TTAB 1985) (applicant’s mark CAYNA (stylized is similar to CANA). In
Great Lakes Canning, the Board made the following finding of fact:
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Moreover, although there are certain differences between
the [marks CAYNA and CANA] in appearance, namely, the
inclusion of the letter ‘Y’ and the design feature in
applicant’s mark, there are also obvious similarities
between them. Considering the similarities between the
marks in sound and appearance, and taking into account
the normal fallibility of human memory over a period of
time (a factor that becomes important if a purchaser
encounters one of these products and some weeks, months,
or even years later comes across the other), we believe that
the marks create substantially similar commercial
impressions. Even those purchasers who are fully aware of
the specific differences between the marks may well
believe, because of the similarities between them, that the
two marks are simply variants of one another, used by a
single producer to identify and distinguish companion lines
of products.
Id. See also Mag Instrument, Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1715 (TTAB
2010) (difference of a single letter does not suffice to distinguish MAG STAR from
MAXSTAR); Alfacell v. Anticancer Inc., 71 USPQ2d 1301, 1305 (TTAB 2004)
(ONCASE is similar to ONCONASE); Kabushiki Kaisha Tokeiten v. Scuotto, 228
USPQ 461, 462 (TTAB 1985) (“[T]he term ‘SEYCOS’ is simply so close in appearance
and pronunciation to ‘SEIKO’ as to make source confusion inevitable when the marks
are used in connection with identical goods.”); Hercules v. Nat’l Starch, 223 USPQ
1244, 1246 (TTAB 1984) (NATROSOL and NATROL is similar because “the clearly
dominant aspect of both marks is that the first four letters and the final two are the
same”).
While not phonetically identical, CABOOZE and CABOOSE are susceptible to
similar pronunciations. Taking into account the normal fallibility of human memory
over time, the marks sound similar enough that a consumer hearing CABOOZE in
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connection with spirits may call to mind CABOOSE BREWING CO. with which
he/she is already familiar or vice versa.
While CABOOZE for Applicant’s spirits connotes “booze,” which is different in
meaning from CABOOSE, because of the similarities in appearance and sound,
purchasers may well believe that the two marks are simply variants of one another,
used by a single producer to identify and distinguish companion lines of products.
When considering the marks in their entireties, we find that they are more similar
than dissimilar and that this DuPont factor weighs in favor of finding that there is a
likelihood of confusion.
III. The similarity or dissimilarity and nature of the goods.
Applicant is seeking to register CABOOZE for spirits and Registrant’s mark
CABOOSE BREWING CO. is for beer. The issue here, of course, is not whether
purchasers would confuse the parties’ goods, but rather whether there is a likelihood
of confusion as to the source of these goods. See In re Cook Medical Tech. LLC, 105
USPQ2d 1377, 1380 (TTAB 2012); Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13
USPQ2d 1618, 1624 (TTAB 1989); In re Rexel Inc., 223 USPQ 830 (TTAB 1984).
To show that beer and spirits are related products, the Examining Attorney
introduced third-party use-based registrations for marks registered for both products
and third-party websites for companies selling beer and spirits under the same mark.
The Examining Attorney proffered 55 third-party use-based registrations. Third-
party registrations based on use in commerce that individually cover a number of
different goods may have probative value to the extent that they serve to suggest that
the listed goods are of a type that may emanate from the same source. In re Albert
Serial No. 87489082 No.

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Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky Duck
Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d mem. 864 F.2d 149
(Fed. Cir. 1988). Representative registrations, with relevant portions of the
identifications, are listed below.8
MARK REG. NO. GOODS
JOHNNY FLAMINGO 4071312 Beer; spirits
EWING YOUNG 3975642 Beer; distilled spirits
O’HARA’S 4133934 Beer; spirits
CILICIA 4243654 Beer; spirits
DEDICATED TO THE
CRAFT
4397040 Beer; spirits

The Examining Attorney submitted excerpts from eight third-party websites
showing the same marks used to identify beer and spirits. The third-party websites
are listed below:
• Altech Lexington Brewing & Distilling Co. (kentuckyale.com) advertising beer,
spirits, whiskey, and bourbon identified by a horse’s head logo;9
• Bent Brew Distillery (bentbrewdistillery.com) advertising amber blonde ale and
gin identified by a BB BENT logo;10
• The Depot Craft Brewery Distillery (thedepotreno.com) advertising THE
DEPOT whiskey and pale ale;11

8 April 25, 2018 Office Action (TSDR 11-175).
9 September 14, 2017 Office Action (TSDR 13-14).
10 Id. at TSDR 15-16.
11 Id. at TSDR 17-18.
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• Dogfish Head (dogfish.com) advertising spirits and beer identified by a fish
logo;12
• Grand River Brewery (grandriverbrewery.com) advertising GRAND RIVER
beer and spirits;13
• Little Toad Creek Brewery & Distillery (littletoadcreek.com) advertising
LITTLE TOAD CREEK beer and spirits;14
• New Holland Brewing and New Holland Artisan Spirits (newhollandbrew.com)
advertising NEW HOLLAND beer and spirits;15 and
• Ranger Creek Brewing & Distilling (drinkrangercreek.com) advertising
RANGER CREEK pale ale and bourbon and rye.16
Applicant argues that beer and spirits are not necessarily related merely because
they are both beverages containing alcohol and criticizes the above-noted evidence of
relatedness “because a very small sample of websites display information about beer
and liquor.”17
When one considers the scope of the internet, and the vast
number of websites dedicated to beer as well as liquor, a
mere [eight] instances of both beer and liquor appearing in
the same website is hardly surprising. It is unclear what
these [eight] examples of websites, who may not limit the
content of their site to solely beer or liquor is intended to
establish. Certainly, this sparse evidence does not meet the

12 April 25, 2018 Office Action (TSDR 176-178).
13 Id. at 179-180.
14 Id. at 181-182.
15 Id. at 183-185.
16 Id. at 186-188.
17 Applicant’s Brief, pp. 11-13 (5 (TTABVUE 12-14).
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Examiner’s burden of proof in establishing the relatedness
of the goods.18
We disagree with Applicant’s contention that the quantity of the Examining
Attorney’s evidence may be lacking. As noted above, we find that the quality of the
registration and Internet evidence establishes beer and spirits are related products
because beer and spirits may emanate from the same source and be identified by the
same mark. If, as Applicant contends, the quantity of the evidence is not sufficient,
then it is incumbent on Applicant to submit evidence explaining why the quantity of
the Examining Attorney’s evidence is not sufficient to prove that beer and spirits are
related products. See In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063
(Fed. Cir. 2003) (reversing the Board’s finding that beer and restaurant services are
related based on Applicant’s evidence that the number of brewpubs, microbreweries,
and specialty breweries were a very small percentage of the number of restaurants
that brew their own beer or sell house brands of beer: “the small number of such
registrations [for beer and restaurant services] suggest that it is quite uncommon for
restaurants and beer to share the same trademark.”). Applicant did not do that.
We find that the evidence of record sufficiently shows that beer and spirits are
related products.
IV. Established, likely-to-continue channels of trade and classes of consumers.
The third-party website evidence shows that beer and spirits are offered for sale
at brewery/distilleries. Also, the evidence shows that many of the brewery/distilleries

18 Applicant’s Brief, p. 13 (5 TTABVUE 14).
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feature taprooms/restaurants and sponsor events where their products are sold.
Thus, beer and spirits are offered in at least some of the same channels of trade to
some of the same class of consumers.
Applicant argues that the description of goods at issue, spirits and beer, are
“extremely narrow and not open for expansion of use” and that neither Applicant, nor
Registrant sell anything other than their respective products.19 While that may be
true, it does nothing to rebut the fact that breweries/distilleries sell both beer and
spirits to the same consumers.
V. Conclusion
Because Registrant’s mark is conceptually strong, the marks are similar, the
goods are related, and the goods are offered in some of the same channels of trade
and to some of the same classes of consumers, we find that Applicant’s mark
CABOOZE for “alcoholic beverages, namely, spirits” is likely to cause confusion with
the registered mark CABOOSE BREWING CO. for beer.
Decision: The refusal to register Applicant’s mark CABOOZE is affirmed.

19 Applicant’s Brief, p. 11 (5 TTABVUE 12).