Franciscan Vineyards, Inc.v.BeauxKat Enterprises LLC

Trademark Trial and Appeal Board

Jun 21, 2010

No. 91181755 (T.T.A.B. Jun. 21, 2010)

Mailed: 6/21/10

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
______

Franciscan Vineyards, Inc.
v.
BeauxKat Enterprises LLC
_____

Opposition No. 91181755
to application Serial No. 77223446
filed on July 6, 2007
_____

Linda Kurth and Jack Rannells of Baker and Rannells for
Franciscan Vineyards, Inc.

Justin D. Park of Romero Park & Wiggins for BeauxKat
Enterprises LLC.
______

Before Quinn, Holtzman and Walsh, Administrative Trademark
Judges.

Opinion by Quinn, Administrative Trademark Judge:

BeauxKat Enterprises LLC filed an intent-to-use
application to register the mark BLACK RAVEN BREWING COMPANY
(“BREWING COMPANY” disclaimed) in standard characters for
“beer” in International Class 32.
Franciscan Vineyards, Inc. opposed registration under
Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), on
the ground that applicant’s mark, when used in connection
with applicant’s goods, so resembles opposer’s previously
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Opposition No. 91181755
2
used and registered marks RAVENSWOOD, RAVENS WOOD, RAVENS,
RAGIN’ RAVEN, and a stylized raven bird design for wine,
clothing and sauces, as to be likely to cause confusion.
Applicant, in its answer, denied the salient
allegations of likelihood of confusion.
Before turning to the substantive merits of the
likelihood of confusion claim, we are required to rule on
the several evidentiary objections raised by the parties in
their respective briefs.
Opposer objects to applicant’s fourth notice of
reliance on certain excerpts from printed publications.
Opposer’s objection is based on relevancy. Suffice it to
say that we have kept in mind the objection when determining
the probative value of this evidence.
Opposer also raises ten pages of objections directed to
various portions of applicant’s testimony, and related
exhibits. Applicant has filed a response thereto. We see
no useful purpose in going through the objections in
excruciating detail. We have considered the testimony and
exhibits in light of the objections, and accorded it
whatever probative value it merits. We will specifically
address, however, opposer’s most substantive objection to
the testimony of Douglas Engler, namely opposer’s objection
to applicant’s offer of it as expert testimony.
Opposition No. 91181755
3
We do not view Mr. Engler as an “expert” in the
alcoholic beverage field. Although Mr. Engler owns and has
operated a retail store (Malt & Vine) selling beer and wine
for three years, we find that his overall experience and
qualifications fall short of establishing him as an expert
under Fed. R. Evid. 702 for the reasons set forth by
opposer. (Opposer’s Brief, Appendix “A,” p. 32; Reply
Brief, pp. 9-10). Accordingly, although we have considered
Mr. Engler’s testimony in his capacity as a fact witness, we
do not regard him as an expert in the field.1 In any event,
the Board is responsible for the factual findings under the
relevant du Pont factors and the ultimate determination of
likelihood of confusion, and we will not substitute the
opinion of a witness, even an expert witness, for our
evaluation of the facts. Edwards Lifesciences Corp. v.
VigiLanz Corp., 94 USPQ2d 1399, 1402 (TTAB 2010).
Applicant, for its part, moves to strike opposer’s
sixth notice of reliance. Attached to the notice is a
summary printout generated by a search of the TESS database
showing 267 third-party registrations wherein both “wine”
and “beer” are listed in the identification of goods
(Exhibit 1). Opposer also submitted copies of 50

1 In view thereof, there is no need to address the procedural
wrangling over whether or not applicant timely and appropriately
identified Mr. Engler as an expert.
Opposition No. 91181755
4
“representative” registrations listed in the summary.
(Exhibit 3).
The TESS summary is insufficient to properly make of
record the third-party registrations. Black & Decker Corp.
v. Emerson Electric Co., 84 USPQ2d 1482, 1494 (TTAB 2007).
However, the copies of the 50 third-party registrations have
been properly introduced. Accordingly, applicant’s motion
to strike is granted in part, and denied in part. To the
extent that applicant argues that the probative value of
such evidence is minimal, we will address this point in our
consideration of this specific evidence, infra.
Applicant also moved to strike opposer’s ninth notice
of reliance on a dictionary listing of the word “raven.”
Dictionary evidence is proper subject matter for a notice of
reliance. The objection is overruled, and this evidence has
been accorded appropriate probative weight.
The record includes the pleadings; the file of the
involved application; a declaration, filed pursuant to
stipulation, of an officer of opposer; trial testimony, with
related exhibits, taken by applicant; status and title
copies of opposer’s pleaded registrations, excerpts from
printed publications, applicant’s responses to certain
discovery requests, and copies of official records, more
specifically, portions of federal and state regulations and
third-party registrations, all introduced by way of
Opposition No. 91181755
5
opposer’s notices of reliance; and opposer’s responses to
applicant’s interrogatories, and excerpts of printed
publications, made of record through applicant’s notices of
reliance. The parties filed briefs.
Opposer has established its standing to oppose
registration of the involved application. In particular,
opposer has properly made its pleaded registrations of
record and, further, has shown that it is not a mere
intermeddler. Opposer’s use and registrations of its marks
establish that opposer has standing. See Cunningham v.
Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842 (Fed. Cir.
2000); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023
(Fed. Cir. 1999); and Lipton Industries, Inc. v. Ralston
Purina Co., 670 F.2d 1024, 213 USPQ 185 (CCPA 1982).
As indicated in the Board’s denial of opposer’s motion
for summary judgment on April 3, 2009, priority is not in
issue in view of opposer’s ownership of valid and subsisting
registrations. King Candy, Inc. v. Eunice King’s Kitchen,
Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
Opposer’s following registrations, all valid and
subsisting, are of record:
Opposition No. 91181755
6

RN 2118153

Clothing, namely,
aprons, bandanas,
caps, gym shorts,
hats, jeans
jackets, polo
shirts, tank tops,
T-shirts, and
sweatshirts

RN 2130653

Wine
RAVENSWOOD RN 2132719 Wine
RAVENS RN 2888963 Wine
RAVENS RN 3134833 Aprons, shirts, T-
shirts, caps,
jackets; wines
RAGIN’ RAVEN RN 3153731 Barbeque sauce;
picante sauce;
ready-made sauces;
sauces; sauces for
barbecued meat
RAGIN RAVEN RN 3336587 Wine
RAVENS WOOD RN 3457923 Barbeque sauce;
picante sauce;
ready-made sauces;
sauces; sauces for
barbecued meat

Although opposer, in its brief (p. 8), reproduced two other
design marks depicting silhouettes of black ravens, there is
insufficient evidence of record to establish that opposer
has used these designs as trademarks for opposer’s wine or
Opposition No. 91181755
7
any other products; rather, the designs were used as
background in advertisements. (opposer’s third notice of
reliance). Accordingly, in making our decision we have not
considered these designs to be trademarks upon which to base
a likelihood of confusion finding.
Our determination under Section 2(d) is based on an
analysis of all of the facts in evidence that are relevant
to the factors bearing on the likelihood of confusion issue.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563 (CCPA 1973). Opposer must establish that there is
a likelihood of confusion by a preponderance of the
evidence. The relevant du Pont factors in the proceeding
now before us are discussed below.
Insofar as the goods are concerned, it is well
established that the goods of the parties need not be
similar or competitive, or even offered through the same
channels of trade, to support a holding of likelihood of
confusion. It is sufficient that the respective goods of
the parties are related in some manner, and/or that the
conditions and activities surrounding the marketing of the
goods 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 Hilson
Research, Inc. v. Society for Human Resource Management, 27
Opposition No. 91181755
8
USPQ2d 1423 (TTAB 1993); and In re International Telephone &
Telegraph Corp., 197 USPQ 910, 911 (TTAB 1978). The issue,
of course, is not whether purchasers would confuse the
goods, but rather whether there is a likelihood of confusion
as to the source of the goods. In re Rexel Inc., 223 USPQ
830 (TTAB 1984).
It is beyond dispute that of opposer’s goods (wine,
clothing and cooking sauces), “wine” is the closest to
applicant’s “beer.” Thus, we will focus on this comparison,
as have the parties, in our analysis of the issue of
likelihood of confusion. We make our determinations
regarding the similarities between the parties’ goods,
channels of trade and classes of purchasers based on the
goods as they are identified in the application and
registration, respectively. Octocom Systems Inc. v. Houston
Computers Services, Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787
(Fed. Cir. 1990). Applicant’s goods are identified as
“beer,” and registrant’s goods are identified as “wine(s).”2
Applicant’s and registrant’s goods are related to the
extent that wine and beer are alcoholic beverages. We
acknowledge that wine and beer are specifically different
products which would not be confused for each other, but

2 Thus, real world distinctions, as for example, that opposer’s
wine is relatively inexpensive (around $10 a bottle at retail),
while applicant’s beer, sold only as draft beer, is fairly
expensive ($5-$6 per pint), are irrelevant in considering this du
Pont factor.
Opposition No. 91181755
9
that is not the test, as noted above. The fact that federal
and state regulations show, according to applicant, that
regulators differentiate between beer and wine is of minimal
probative value.
Opposer submitted a printout of a search summary using
the USPTO’s TESS database. The summary lists 267 third-
party registrations of marks that list both “wine” and
“beer” in the identification of goods. As noted above, a
TESS printout is insufficient to properly make the
registrations of record. However, opposer additionally
submitted copies of these 50 third-party registrations that
include in their identification of goods both wine and beer.
We are compelled to comment, at the outset of our
consideration of this evidence, that opposer should have
been more careful in its selection of the registrations.
Indeed, opposer submitted numerous registrations that are of
no probative value. Several of the registrations are
cancelled; by our count, 7 of them. Further, several of the
registrations are based on foreign filings; by our count,
numbering no less than 12. One other registration
specifically indicates that the goods do not include wine
(Reg. No. 2431892). Accordingly, it would appear that of
Opposition No. 91181755
10
the registrations submitted, 30 are subsisting, use-based
registrations that list both “wine” and “beer.”3
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 wine and beer are
of a kind of product that may emanate from a single source
under a single mark. In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir.
1988). See also In re Albert Trostel & Sons Co., 29 USPQ2d
1783, 1785-86 (TTAB 1993). By way of example, see Reg. No.
3099373 for the mark SCHILLINBRIDGE for beer and wine only;
Reg. No. 3115035 for the mark PRIMER for beer and wine and
other alcoholic beverages; and Reg. No. 3396347 for beer and
wine and other alcoholic beverages.
Having said this, we also note that a few of the
registered marks appear to be house marks, with the
identifications of goods listing goods as diverse as
stationery, cooking sets and candelabras, as well as wine
and beer (e.g., Reg. No. 3005606 owned by Laurent-Perrier
for the stylized mark LP). The probative value of these
registrations is diminished.

3 In the future counsel would be well advised to submit only
those registrations that carry probative weight, and not saddle
the Board with the task of sifting through a multitude of
registrations (in this case accounting for more than 200 pages).
Opposition No. 91181755
11
We find that the use-based third-party registrations
(discounting those for house marks) are probative under the
second du Pont factor in showing relatedness between wine
and beer. This finding is buttressed by Mr. Engler’s
testimony that he is aware “of a couple boutique wineries in
California who have installed a very small scale brewing
system so that they could brew some beer for their local –
the people who come into their tasting room or their local
restaurants.” (Engler dep., p. 14).
Given the lack of restrictions in the identifications
of goods, we must presume that the goods travel through all
ordinary trade channels, which would include for both beer
and wine, liquor stores, grocery stores, bars and
restaurants. Indeed, Mr. Engler states that at his Malt &
Vine store he sells both beer and wine. And, although Mr.
Engler opined that there is no “direct competition between
beer and wine,” and that there are differences in how he
markets beer and wine, he acknowledged that the same
distributors handle both. (Engler dep., pp. 11 and 13).
Applicant itself, at its brewpub, offers one red and one
white wine selection (both produced by a third party under a
different mark) as alternatives for non-beer drinkers.
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001, 1004 (Fed. Cir. 2002).
Opposition No. 91181755
12
Further, these goods would be offered to the same
customers. See Schieffelin & Co. v. Molson Companies Ltd.,
9 USPQ2d 2069, 2073 (TTAB 1989) (“[a] typical consumer of
alcoholic beverages may drink more than one type of beverage
and may shop for different alcoholic beverages in the same
liquor store. Moreover, a person may serve more than one
kind of alcoholic beverage before or during a meal or at a
party.”). We have considered Mr. Engler’s testimony that
consumers routinely define themselves as either a “beer
person” or a “wine person.” (Engler dep., pp. 9-10).
Notwithstanding his characterization, Mr. Engler readily
conceded that the same consumers, himself included, buy and
drink both beer and wine. (Engler dep., pp. 35-36).
Further, the relevant purchasing public would include
ordinary consumers who would be likely to use nothing more
than ordinary care in making their purchasing decisions.
The goods are identified broadly enough as to include
relatively inexpensive beer and wine; thus, such goods may
be subject to an impulse purchase, even during the same
shopping trip. (Engler dep., p. 12).
The record also includes excerpts from 14 printed
publications, such as Food & Wine, Bon Appetit, Wine
Spectator and Gourmet showing that beer and wine are
advertised or discussed in the same magazines. (opposer’s
second notice of reliance).
Opposition No. 91181755
13
In making our findings above on the du Pont factors
relating to the goods, we note that when similar evidence
has been made of record, numerous cases have found that
different alcoholic beverages are related products which are
sold in the same trade channels to the same classes of
purchasers, including to ordinary consumers, and that
confusion is likely to result if the goods were to be sold
under similar marks. See, e.g., In re Chatam International
Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004) (beer
and tequila); and In re Majestic Distilling Co., 315 F.3d
1311, 65 USPQ2d 1201 (Fed. Cir. 2003) (malt liquor and
tequila). Indeed, when the proper evidence has been made of
record, the Board’s precedential authority specifically
holds beer and wine are related products. See In re
Sailerbrau Franz Sailer, 23 USPQ2d 1719 (TTAB 1992).
In sum, the factors relating to the goods, namely the
similarities between wine and beer, the identity in trade
channels and prospective purchasers, and the conditions of
sale weigh in favor of a finding of likelihood of confusion.
We next turn to consider the marks.
Inasmuch as opposer introduced evidence bearing on the
du Pont factor of fame, we first direct our attention to
this factor. Fame of the prior mark plays a dominant role
in likelihood of confusion cases featuring a famous mark.
Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63
Opposition No. 91181755
14
USPQ2d 1303 (Fed. Cir. 2002); Recot Inc. v. M.C. Becton, 214
F.3d 1322, 54 USPQ2d 1894 (Fed. Cir. 2000); and Kenner
Parker Toys, Inc. v. Rose Art Industries, Inc., 963 F.2d
350, 22 USPQ2d 1453 (Fed. Cir. 1992). “Famous marks enjoy
wide latitude of legal protection since they are more likely
to be remembered and associated in the public mind than
weaker marks, and are thus more attractive as targets for
would-be copyists. Indeed, ‘[a] strong mark...casts a long
shadow which competitors must avoid.’” (citations omitted)
Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed.
Cir. 2005).
Opposer claims that “[its] products are well-known and
have achieved great recognition” and that it “enjoys
enviable sales.” (Brief, p. 26). Further, opposer contends
that “its mark and name are well-known and famous throughout
the United States.” (Brief, p. 27). Pursuant to the
parties’ stipulation, opposer’s sales and advertising
figures were introduced by way of the declaration of Joel
Peterson, opposer’s co-founder and senior vice president of
opposer’s parent company. Opposer’s annual wholesale sales
under its marks over the last seven years average around $65
million, and Mr. Peterson states that the retail value is
approximately double that. Opposer’s annual advertising and
promotional expenses for its marks have exceeded $400,000.
Opposition No. 91181755
15
Opposer sales of a variety of gift items bearing opposer’s
marks during the period 1999-2003 amounted to approximately
$666,000, and in 2008 the sales amounted to $453,000.
Fame may be measured indirectly by sales volume and
advertising expenditures of the goods identified by the
marks at issue, “by the length of time those indicia of
commercial awareness have been evident,” widespread critical
assessments and through notice by independent sources of the
goods identified by the marks, as well as the general
reputation of the goods. Bose Corp. v. QSC Audio Products
Inc., 63 USPQ2d 1305-1306 and 1309. Although raw numbers of
product sales and advertising expenditures may have sufficed
in the past to prove fame of a mark, raw numbers alone may
be misleading. Some context in which to place raw numbers
may be necessary (e.g., the substantiality of the sales or
advertising figures for comparable types of goods). Id. at
1309. Finally, because of the extreme deference accorded to
a famous mark in terms of the wide latitude of legal
protection it receives, and the dominant role fame plays in
the likelihood of confusion analysis, it is the duty of the
party asserting fame to clearly prove it. Leading Jewelers
Guild Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB
2007).
Although the numbers provided by opposer are not
insignificant, there is no testimony or evidence regarding
Opposition No. 91181755
16
whether opposer’s sales and advertising numbers are large or
small vis-à-vis other comparable wines. Moreover, in the
present case, opposer did not break down the sales and
advertising figures for each mark; rather, the numbers
pertain to the marks collectively. This failure adds to the
uncertainty of which mark, if any, is famous as contemplated
by this du Pont factor.
Opposer also submitted approximately 200 articles
published from 1990-2009. In each of the articles,
reference is made to opposer’s RAVENSWOOD wines and/or
winery. Most of the articles only briefly mention opposer
and/or its wines; these articles carry references to many
other wines/wineries as well. In any event, although
opposer’s winery and wines have been mentioned in many
publications, the articles have limited probative value
because they do not establish recognition of any of
opposer’s marks by the relevant purchasing public.
We also have considered Mr. Engler’s testimony that
opposer is a “significant winery,” and that RAVENSWOOD wine
enjoys a “substantial reputation” and is “well known.”
Further, as opposer points out, the record is devoid of
evidence of any third-party uses or registrations of similar
marks in the alcoholic beverage field.
Based on the record, we find that while opposer’s
RAVENSWOOD mark may enjoy some renown, the record falls
Opposition No. 91181755
17
short of establishing that the mark is famous as
contemplated by case law. We should add that the record
also falls far short in showing that any of opposer’s other
marks, including RAVENS, is famous.
With respect to a comparison of the marks, we must
compare opposer’s marks to applicant’s mark in their
entireties as to appearance, sound, connotation and
commercial impression to determine the similarity or
dissimilarity between them. Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, supra. The test,
under the first du Pont factor, is not whether the marks can
be distinguished when subjected to a side-by-side
comparison, but rather whether the marks are sufficiently
similar in terms of their overall commercial impression that
confusion as to the source of the goods offered under the
respective marks is likely to result. The focus is on the
recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks.
See Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106 (TTAB
1975).
Although the evidence indicates that opposer’s
principal mark is RAVENSWOOD, we will focus our likelihood
of confusion comparison between applicant’s mark BLACK RAVEN
BREWING COMPANY and the mark of opposer that is closest to
this mark, namely RAVENS.
Opposition No. 91181755
18
It is well settled that one feature of a mark may be
more significant than another, and it is not improper to
give more weight to this dominant feature in determining the
commercial impression created by the mark. In re National
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.
1985) (“There is nothing improper in stating that, for
rational reasons, more or less weight has been given to a
particular feature of a mark, provided the ultimate
conclusion rests on consideration of the marks in their
entireties. Indeed, this type of analysis appears to be
unavoidable.”).
In the case of applicant’s mark, BLACK RAVEN clearly
dominates the BREWING COMPANY portion. The generic words
BREWING COMPANY are disclaimed, and, although we have
compared the marks in their entireties, these words play a
subordinate role in the mark. See In re Dixie Restaurants
Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir.
1997) (THE DELTA CAFÉ and design mark is dominated by
DELTA). The subordinate role of the words BREWING COMPANY
is further confirmed by the evidence showing applicant’s
logo mark wherein these words are in small font at the
bottom of the logo. There is no question that BLACK RAVEN
is the portion of the mark that is most likely to be
remembered and used by consumers in calling for and
referring to applicant’s beer. Moreover, purchasers in
Opposition No. 91181755
19
general are inclined to focus on the first word or portion
in a trademark. Presto Products, Inc. v. Nice-Pak Products,
Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often the
first part of a mark which is likely to be impressed upon
the mind of a purchaser and remembered”). See Palm Bay
Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 73 USPQ2d at 1692. This dominant portion of
applicant’s mark, BLACK RAVEN, is similar to the entirety of
opposer’s mark RAVENS.
The marks share the word RAVEN (the plural form in
opposer’s mark) and, thus, look and sound similar.
As for meaning, the term “raven” is defined, in
pertinent part, as “a large, black, omnivorous and
occasionally predatory bird; glossy black.” The New Lexicon
Webster’s Dictionary of the English Language (1987).
Applicant’s promotional materials show that its logo depicts
a black bird, as does opposer’s advertising materials. We
find that RAVENS and BLACK RAVEN convey substantially
similar, if not virtually identical meanings. Although the
addition of BREWING COMPANY in applicant’s mark informs
prospective consumers that the entity is a brewery, the
evidence indicates, as discussed above, that beer and wine
may emanate from the same entity.
Opposition No. 91181755
20
The marks engender similar overall commercial
impressions, that of a raven bird; and, as shown by the
dictionary definition, ravens are black in color.
Accordingly, the du Pont factor focusing on the
similarities between the marks RAVENS and BLACK RAVEN
BREWING COMPANY weighs in opposer’s favor. As noted above,
opposer has prior rights in a variety of registered marks,
namely RAVENSWOOD, RAVENS, RAVENS WOOD and RAGIN’ RAVEN.
Although opposer did not plead or prove a “family” of RAVEN
marks, the fact that opposer itself has used variations of
marks that include RAVEN(S) increases the likelihood that
BLACK RAVEN, even when coupled with the generic designation
BREWING COMPANY, would be perceived as another variation.
See Humana Inc. v. Humanomics Inc., 3 USPQ2d 1696, 1700
(TTAB 1987) (opposer’s use of HUMANA variation, e.g., HUMANA
CARE and HUMANA CARE PLUS, increases likelihood that
applicant’s mark HUMANOMICS would be perceived as a
variation); and Varian Associates, Inc. v. Leybold-Heraeus
G.m.B.H., 219 USPQ 829, 833 (TTAB 1983) (use of trade name
VARIAN in close association with other marks incorporating
the term “vac”, e.g., VACION, VACSORB and EVAC, accorded
considerable weight in Board’s conclusion that applicant’s
VAROVAC used for the same goods is likely to be associated
with opposer).
Opposition No. 91181755
21
The absence of evidence of actual confusion is not
dispositive in this case. A showing of actual confusion
would of course be highly probative, if not conclusive, of a
likelihood of confusion. The opposite is not true, however.
The lack of evidence of actual confusion carries little
weight. J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d
960, 144 USPQ 435, 438 (CCPA 1965). In any event, given
that sales of applicant’s beer are almost exclusively at its
brewpub, the exposure of applicant’s mark to the general
purchasing public has been relatively limited. Thus, it
would appear that the opportunity for instances of actual
confusion to have occurred in the marketplace has been
minimal. See Cunningham v. Laser Golf Corp., 55 USPQ2d at
1847; and Gillette Canada Inc. v. Ranir Corp., 23 USPQ2d
1768, 1774 (TTAB 1992). Moreover, as often stated, proof of
actual confusion is not necessary to establish likelihood of
confusion. Giant Food, Inc. v. Nation’s Foodservice, Inc.,
710 F.2d 1565, 218 USPQ 390, 396 (Fed. Cir. 1983).
Accordingly, the du Pont factor of the length of time during
and conditions under which there has been contemporaneous
use without evidence of actual confusion is considered
neutral.
We find that the du Pont factors, on balance, weigh in
favor of a finding of likelihood of confusion. We conclude
that consumers familiar with opposer’s wine sold under the
Opposition No. 91181755
22
mark RAVENS, would be likely to believe, upon encountering
applicant’s mark BLACK RAVEN BREWING COMPANY for beer, that
the goods originate from or are associated with or sponsored
by the same entity.
Lastly, to the extent that there may be any doubt on
our finding of likelihood of confusion, we resolve that
doubt, as we must, in favor of opposer as the prior user and
registrant. See Giant Food, Inc. v. Nation’s Foodservice,
Inc., 218 USPQ at 395.
Decision: The opposition is sustained, and
registration to applicant is refused.