FBR IP, LLC

Trademark Trial and Appeal Board

Mar 26, 2019

EX (T.T.A.B. Mar. 26, 2019)

Mailed: March 26, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE

Trademark Trial and Appeal Board
————
In re FBR IP, LLC
————
Serial No. 87120468
————
Elisabeth A. Evert of Hitchcock Evert LLP,
for FBR IP, LLC.
Linda Orndorff, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.
————
Before Cataldo, Heasley, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
FBR IP, LLC (“Applicant”) seeks registration on the Principal Register of the mark
HAYWIRE (in standard characters) for “Restaurant, bar and catering services” in
International Class 43.1

1 Application Serial No. 87120468, filed on July 29, 2016, was originally based upon an
allegation of bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b). Applicant subsequently filed an amendment to allege
use, asserting November 29, 2017 as both the date of first use and the date of first use in
commerce. 15 U.S.C. § 1051(a).
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 87120468
2
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the mark HAYWIRE BREWING CO. (in standard
characters; BREWING CO. disclaimed) registered on the Principal Register for “Bar
services featuring beer; Taproom services; Taproom services featuring beer brewed
on premises” in International Class 43.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. The appeal is fully briefed. We affirm the
refusal to register.3
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the factors bearing on the issue of likelihood of
confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
(CCPA 1973); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201,
1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and the similarities between
the goods or services. 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)

2 Registration No. 5178336; registered on April 4, 2017.
3 The TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations refer to
the docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.
Serial No. 87120468
3
goes to the cumulative effect of differences in the essential characteristics of the goods
[or services] and differences in the marks.”).
A. Similarity of the Services
We initially turn to the comparison of the services at issue, the second du Pont
factor. In making our determination regarding the relatedness of the services, we
must look to the services as identified in Applicant’s application and the cited
registration. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,
110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (quoting Octocom Sys., Inc. v. Hous.
Computs. 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 [or services] set forth in the
application regardless of what the record may reveal as to the particular nature of an
applicant’s goods [or services], the particular channels of trade or the class of
purchasers to which the sales of goods [or services] are directed.”)); see also In re
Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011). It is well-settled that the
services of Registrant and Applicant need not be identical or competitive, or even be
offered through the same channels of trade, to support a holding of likelihood of
confusion. It is sufficient that the respective services are related in some manner, or
that the conditions and activities surrounding the marketing of the services are such
that they would or could be encountered by the same persons under circumstances
that could, because of the similarity of the marks, give rise to the mistaken belief that
they originate from the same source. See Coach Servs. Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (citation omitted); Hilson
Serial No. 87120468
4
Research, Inc. v. Soc’y for Human Res. Mgmt., 27 USPQ2d 1423, 1432 (TTAB 1993).
The issue here, of course, is not whether consumers would confuse the services, but
rather whether there is a likelihood of confusion as to the source of these services.
L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223
USPQ 830, 831 (TTAB 1984).
Applicant’s identified services are “Restaurant, bar and catering services.” The
services identified in the cited registration are “Bar services featuring beer; Taproom
services; Taproom services featuring beer brewed on premises.” In this case,
Applicant’s “bar services” identified in its involved application is broadly-worded so
as to encompass Registrant’s “bar services featuring beer,” and, therefore, these
services are legally identical in part.4
We take judicial notice of the dictionary definition of the term “taproom,” which is
defined as “a bar or barroom.”5 As such, Applicant’s broadly-worded “bar services”
also would encompass Registrant’s “taproom services” and, therefore, these services

4 The fact that the cited registration does not identify “catering services” is of no consequence.
Registration must be refused if Applicant’s mark for any of its identified services is likely to
cause confusion with Registrant’s mark for any of its identified services. See Tuxedo
Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In
re Aquamar, Inc., 115 USPQ2d 1122, 1126, n.5 (TTAB 2015) (“it is sufficient for finding a
likelihood of confusion if relatedness is established for any item encompassed by the
identification of goods [or services] within a particular class in the application.”).
5 American Heritage Dictionary (5th edition), AHDictionary.com. The Board may take
judicial notice of dictionary definitions, including online dictionaries that exist in printed
format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB 2014), aff’d, 823 F.3d
594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v. Metronome Enters. Inc., 96
USPQ2d 1031, 1038 n.14 (TTAB 2010). The Board also may notice dictionary definitions sua
sponte. See University of Notre Dame du Lac v. J.C. Gourmet Food Imps. Co., 213 USPQ 594,
596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).

Serial No. 87120468
5
are also legally identical in part.
We further note that the Examining Attorney submitted nine active third-party
registrations, each identifying under a single mark both “restaurant services” and
“taproom services.”6 Although such registrations are not evidence that the marks
shown therein are in use or that the public is familiar with them, they nonetheless
have probative value to the extent that they serve to suggest that the services listed
therein are of a kind that may emanate from a single source under a single mark. See
In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky
Duck Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988). The third-party
registered marks are identified below:
Reg. No. Mark Relevant
Identification of
Services
5347326

(LITTLE ROCK and BREWING CO.
disclaimed)
Restaurant services;
Taproom services.
5320174

(ARTISAN BEER disclaimed)
Bar and restaurant
services; Brewpub
services; Taproom
services; Taproom
services featuring
craft beer

6 January 3, 2018 Office Action; TSDR pp. 6-30.
Serial No. 87120468
6
Reg. No. Mark Relevant
Identification of
Services
5336358 CHA-CHUNKER
(in standard characters)
bar and restaurant
services; cocktail
lounge services;
taproom services
featuring specialty
cocktails.
5190194

(ASTORIA OREGON and BEER CO.
disclaimed)
Brewpub services;
Restaurant services;
Restaurant services,
including sit-down
service of food and
take-out restaurant
services; Taproom
services; Taproom
services featuring
craft beer.
5361041 INC 82 BREWING CO.
(in standard characters; BREWING
CO. disclaimed)
Restaurant services;
Taproom services.
5222657

(BREWING COMPANY disclaimed)
Bar services;
Restaurant services;
Taproom services.
5290066 LAZARUS BREWING COMPANY
(BREWING COMPANY disclaimed)
Bar and restaurant
services; Taproom
services featuring
craft beer, coffee and
espresso beverages,
beer brewed on
premises, wine and
other beverages.
Serial No. 87120468
7
Reg. No. Mark Relevant
Identification of
Services
5322989

(PUB & KITCHEN disclaimed)
Bar services;
Bartending services;
Food and drink
catering; Pubs;
Restaurant; Restaurant
and bar services;
Restaurant and bar
services, including
restaurant carryout
services; Restaurant
and catering services;
Restaurant services;
Restaurant services
featuring American
food; Restaurant
services, including sit-
down service of food and
take-out restaurant
services; Restaurant
services, namely,
providing of food and
beverages for
consumption on and off
the premises;
Restaurant, bar and
catering services;
Restaurants; Taproom
services; Taproom
services featuring craft
beer and beer brewed on
premises; Catering of
food and drinks;
Providing of food and
drink; Providing of food
and drink via a mobile
truck; Provision of food
and drink in
restaurants; Serving
food and drinks; Serving
of food and
drink/beverages.
5364622

(CRAFTHOUSE disclaimed)
Restaurant and bar
services; Restaurant
services; Taproom
services.

Serial No. 87120468
8
Applicant argues that the parties’ respective services are dissimilar. Specifically,
Applicant contends that, based on its submitted specimens and other evidence of
record, it offers a western‐themed restaurant featuring a wine cellar and whiskey
bar.7 Applicant further maintains that it offers less than a dozen beers, and its
serving of beer is merely incidental to its savory meals and “Texas‐sized whiskey list,”
which features over one hundred whiskeys.8 In contrast, Applicant argues that
Registrant’s business is entirely based on the quality of its craft brews and that
Registrant’s identification is also limited to beer.9 Applicant also contends that there
is no evidence suggesting that Registrant offers restaurant services of any kind.10
As stated, to determine the relationship between the services, we are bound by
the identifications in Applicant’s involved application and the cited registration. In
re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997)
(“Likelihood of confusion must be determined based on an analysis of the marks as
applied to the … services recited in applicant’s application vis-à-vis the … services
recited in [a] …registration, rather than what the evidence shows the… services to
be.”) (citing Canadian Imperial Bank v. Wells Fargo Bank, N.A., 811 F.2d 1490, 1
USPQ2d 1813, 1815 (Fed. Cir. 1987)). Applicant disregards this requirement by
impermissibly relying upon extrinsic evidence to distinguish the services at issue.
Consequently, we cannot consider extrinsic evidence regarding the similarities

7 Applicant’s Appeal Brief, p. 5; 7 TTABVUE 6.
8 Id.
9 Id.
10 Id.
Serial No. 87120468
9
between Applicant’s services and Registrant’s services. See Coach Servs. Inc., 101
USPQ2d at 1722; Octocom Sys., 16 USPQ2d at 1787. For these reasons, we reject
Applicant's argument.
Applicant also argues that the number of business establishments that provide
both “restaurant services” and “taproom services” under the same mark is de
minimis.11 In support of its argument, Applicant submits (for the first time with its
Reply Brief), three sets of Trademark Electronic Search System (“TESS”) listings of
active third-party registrations, i.e., one list of approximately 39,000 live third-party
registrations purportedly identifying only “restaurant services,” a second list of 650
live third-party registrations purportedly identifying only “taproom services,” and a
third list of 145 live third-party registrations purportedly identifying both
“restaurant services” and “taproom services.”12
The record in an application must be complete prior to appeal. See Trademark
Rule 2.124(d), 37 C.F.R. § 2.124(d). Since Applicant did not submit the TESS listings
of third-party registrations prior to appeal, this evidence is untimely, particularly
since it was submitted for the first time with Applicant’s Reply Brief, which did not
afford the Examining Attorney the opportunity to object to this evidence. Accordingly,
we have given no consideration to the listings of third-party registrations submitted
by Applicant.13

11 Applicant’s Reply Brief, p. 5; 10 TTABVUE 6.
12 Id. at Exhs. A-C, 10 TTABVUE 8-19.
13 Even if Applicant had timely submitted these listings, the mere listings of third-party
registrations is not sufficient to make those registrations of record, see In re Jonathan Drew,
Serial No. 87120468
10
Because Applicant’s “bar services” are legally identical in part to Registrant’s “bar
services featuring beer” and “taproom services,” and because the third-party
registration evidence submitted by the Examining Attorney demonstrates that both
“restaurant services” and “taproom services” are commonly offered under the same
mark, we find that the second du Pont factor regarding the similarity of the parties’
respective services favors a finding of likelihood of confusion.
B. Similarity of Trade Channels and Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third du
Pont factor. Because the identifications of Applicant’s “bar services” and Registrant’s
“bar services featuring beer” and “taproom services” are legally identical in part and
are unrestricted as to channels of trade or classes of customers, it is presumed that
their trade channels and classes of purchasers are the same. See In re Viterra Inc.,
671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally identical goods [or
services] are presumed to travel in same channels of trade to same class of
purchasers); In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA
1968) (where there are legally identical goods [or services], the channels of trade and
classes of purchasers are considered to be the same); In re Am. Cruise Lines, Inc., 128
USPQ2d 1157, 1158 (TTAB 2018).

Inc., 97 USPQ2d 1640, 1644 n.11 (TTAB 2011), and without any accompanying indication of
the owners of the registrations or goods or services associated therewith, the listings have
little, if any, probative value because there is no information by which we may assess
Applicant’s argument, or how many of these registrations, if any, identify services related to
those at issue herein. See Edom Labs. Inc. v. Lichter, 102 USPQ2d 1546, 155 (TTAB 2012)
(TESS listing has little, if any, probative value); see also TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (“TBMP”) § 1208.02 (2018) and the authorities cited therein.
Serial No. 87120468
11
While there is no evidence of record regarding the similarity of trade channels for
Applicant’s “restaurant services” and Registrant’s “taproom services,” it is common
knowledge that many restaurants serve alcoholic beverages, including beer. As such,
these two services travel in similar, if not overlapping, channels of trade.
Additionally, we note that neither Applicant’s “restaurant services” nor Registrant’s
“taproom services” include any limitations as to classes of purchasers. While we
assume that Registrant’s taproom services, by their very nature, are limited to adults,
that does not meaningfully differentiate the classes of purchasers, for even though
restaurants serve children, the relevant purchasing public, which chooses and
purchases those services, is generally adult. Hence, the relevant class of customers
for Applicant's “restaurant services” and Registrant's “taproom services” is generally
the same: ordinary adult purchasers of food and/or drink served on the premises.
Thus, the third du Pont factor also weighs in favor of finding a likelihood of
confusion.
C. Similarity of the Marks
We consider next the similarity or dissimilarity of the marks in their entireties as
to appearance, sound, connotation and commercial impression. See Palm Bay Imps.,
Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 369 F.3d 1369, 73 USPQ2d
1689, 1691 (Fed. Cir. 2005). “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., 101 USPQ2d at
Serial No. 87120468
12
1721 (internal quotation marks omitted).
Applicant’s mark is HAYWIRE in standard characters. The cited mark is
HAYWIRE BREWING CO. also in standard characters. When viewing Registrant’s
mark, the term HAYWIRE is likely to be accorded more weight by consumers because
the remaining wording BREWING CO. is at a minimum descriptive of, if not generic
for, Registrant’s services, and has been appropriately disclaimed. As such, BREWING
CO. is less likely to make an impact in the minds of consumers. See In re Dixie Rests.,
Inc., 41 USPQ2d at 1533-34 (disclaimed matter that is descriptive of or generic for a
party’s goods is typically less significant or less dominant when comparing marks);
see also In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 753 (Fed. Cir. 1985).
In view of the foregoing, we find that the term HAYWIRE is the dominant portion of
Registrant’s mark.
We further note that although Applicant’s mark does not contain the wording
“BREWING CO.,” consumers familiar with Registrant’s mark are likely to assume
that Applicant’s mark is merely a variation or shortened version of Registrant’s mark.
See In re Mighty Leaf Tea, 601 F.3d 1342, 1348, 94 USPQ2d 1257, 1260 (Fed. Cir.
2010) (quoting United States Shoe Corp., 229 USPQ 707, 709 (TTAB 1985)). Thus,
merely omitting some of the wording from a registered mark may not overcome a
likelihood of confusion. In re Mighty Leaf Tea, 94 USPQ2d at 1260; In re Optica Int’l,
196 USPQ 775, 778 (TTAB 1977); TRADEMARK MANUAL OF EXAMINING PROCEDURE
(“TMEP”) §1207.01(b)(ii)-(iii) (Oct. 2018).
Serial No. 87120468
13
We recognize that in comparing the marks, we must consider Applicant’s and
Registrant’s marks in their entirety. Thus, we have taken into account the only
difference between them, namely, the inclusion of the term BREWING CO. in
Registrant’s mark. We nonetheless find that despite this difference, given the
similarities between the marks due to the shared and dominant term HAYWIRE, the
marks are similar in appearance, pronunciation, and connotation and engender very
similar overall commercial impressions. This especially holds true when the services
are legally identical in part, as is the case here. Cf. Coach Servs. Inc., 101 USPQ2d
at 1722 (“When trademarks would appear on substantially identical goods [or
services], ‘the degree of similarity necessary to support a conclusion of likely
confusion declines.’”) (internal citations omitted).
Accordingly, the first du Pont factor also favors a finding of likelihood of confusion.
II. Conclusion
We have considered all of the arguments and evidence of record, including those
not specifically discussed herein, and all relevant du Pont factors. We have found that
(1) the marks at issue are similar in appearance, sound, connotation and commercial
impression; (2) Applicant’s identified “bar services” are legally identical in part to
Registrant’s “bar services featuring beer” and “taproom services” and that Applicant’s
“restaurant services” are related to Registrant’s “taproom services;” (3) the legally
identical in part services are presumed to move in identical or overlapping trade
channels and that they would be offered to the same or overlapping classes of
purchasers; and (4) Applicant’s “restaurant services” and Registrant’s “taproom
services” share similar trade channels and that these services are offered to similar
Serial No. 87120468
14
or overlapping classes of consumers. We conclude, therefore, that Applicant’s
HAYWIRE mark, as used in connection with the services identified in its involved
application, so resembles the cited mark HAYWIRE BREWING CO. as to be likely to
cause confusion or mistake, or to deceive under Section 2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.