iBrewMaster, Inc.

Trademark Trial and Appeal Board

Aug 23, 2013

No. 85519362 (T.T.A.B. Aug. 23, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: August 23, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re iBrewMaster, Inc.
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Serial No. 85519362
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Matthew H. Swyers of The Trademark Company,
for iBrewMaster, Inc.
Susan K. Lawrence, Trademark Examining Attorney, Law Office 116,
Michael W. Baird, Managing Attorney.
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Before Bucher, Ritchie and Kuczma,
Administrative Trademark Judges.

Opinion by Bucher, Administrative Trademark Judge:
iBrewMaster, Inc. (“applicant”) seeks registration on the Principal Register of
the mark iBrewMaster (in standard character format) for the following goods:
computer application software for mobile phones, namely,
software for use in creating, managing, and tracking
processes for brewing beer, creating beer recipes,
management of the creation of batches of brewed beer,
sharing of recipes, and tracking of all the steps of the
beer, mead, and cider brewing process; computer
application software for mobile phones, portable media
players, tablet computers, handheld computers and
desktop computers, namely, software for use in creating,
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managing, and tracking processes for brewing beer,
creating beer recipes, management of the creation of
batches of brewed beer, sharing of recipes, and tracking of
all the steps of the beer, mead, and cider brewing process
in International Class 9.1
The examining attorney has refused registration of applicant’s mark under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), having determined that
registration would lead to a likelihood of confusion in view of the mark BREW
MASTER (also in standard character format) registered in connection with the
following goods:
hand held electronic device having a display screen and
operatable buttons for displaying a directory of beers, beer
evaluations, and other like information about beer, such
as taste, serving instructions, prices, type of beer, color,
and sizes in International Class 9.2
After the examining attorney made the refusal final, applicant appealed to this
Board. We affirm the refusal to register.
Our determination under Trademark Act § 2(d) is based upon an analysis of the
probative facts in evidence that are relevant to the factors bearing on a likelihood of
confusion. See In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563
(CCPA 1973); see also Palm Bay Imp., Inc. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005); In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003); and In re Dixie

1 Application Serial No. 85519362 was filed on January 18, 2012, based upon applicant’s
claim of first use anywhere and use in commerce since at least as early as June 2009.
2 Registration No. 3392771 issued on March 4, 2008. No claim is made to the exclusive right to
use the word “Brew” apart from the mark as shown.
Serial No. 85519362
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Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997). In considering the
evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry
mandated by Section 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976); see also In
re Azteca Rest. Enters., Inc., 50 USPQ2d 1209 (TTAB 1999).
A. Comparison of the Marks
Applicant has applied to register the mark iBrewMaster. The registered mark is
BREW MASTER. In comparing the marks, we must consider the marks in their
entireties as to appearance, sound, connotation and commercial impression, to
determine the similarity or dissimilarity between them. Palm Bay, 73 USPQ2d at
1692. 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. Because the similarity or dissimilarity of the marks is determined based
on the marks in their entireties, the analysis cannot be predicated on dissecting the
marks into their various components; that is, the decision must be based on the
entire marks, not just part of the marks. In re National Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985). On the other hand, different features may be
analyzed to determine whether the marks are similar. Price Candy Company v.
Gold Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In
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fact, 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 a consideration of the marks in their entireties. In re National
Data Corp., 224 USPQ at 751. 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).
Applicant argues that in light of the fact its mark leads with the letter “i” and
collapses “Brew” “Master” into a single run-on string of letters, these two marks
create different commercial impressions.
By contrast, the examining attorney argues that the two marks are confusingly
similar as to appearance, sound, connotation and commercial impression.
While applicant’s inclusion of the letter “i” at the beginning of its mark does
create dissimilarity as to sound and appearance with the cited mark, the overall
similarities outweigh the differences. As to meaning, both marks are dominated
by the term “BrewMaster” (or “Brew Master”),3 a term equally suggestive of
both applicant’s and registrant’s goods. In this context, the addition of the “i”
prefix to applicant’s mark further suggests some connection with the Internet.
When these respective marks are used with class 9 mobile apps or hand-held

3 brew·mas·ter NOUN: A brewer, especially the head brewer at a microbrewery. AMERICAN
HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, attached to the examining attorney’s appeal
brief and drawn from http://education.yahoo.com/reference/dictionary/entry/brewmaster.
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217
USPQ 505 (Fed. Cir. 1983).
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devices, designed especially for beer brewers and/or craft beer aficionados, the
overall commercial impressions are nearly identical.
Hence, this critical du Pont factors favors a finding of likelihood of confusion
herein.
B. Third-party Uses
Turning to a related factor, applicant argues that the wording “Brew Master” is
diluted and therefore the cited mark should be given a narrow scope of protection.
Indeed, the sixth du Pont factor requires consideration of any evidence pertaining to
“the number and nature of similar marks in use on similar goods.”
In support of its position, applicant submitted copies of the following third-party
registrations containing some form of the terms “Brew” and “Master”:4
BREW MASTER for “hose for conveying beer, or for conveying
products used in the beer brewing process” in
International Class 17;5
COORS MASTER BREWERS for “beer” in International Class 32;6

for “beer” in International Class 32;7

4 Registration No. 3186211 was recently cancelled under Section 8 of the Act.
5 Registration No. 1508125 issued to The Gates Rubber Company on October 11, 1988;
renewed.
6 Registration No. 3214743 issued to Coors Brewing Company on March 6, 2007; Section 8
affidavit accepted and Section 15 affidavit acknowledged. No claim is made to the exclusive
right to use the words “Master Brewers” apart from the mark as shown.
7 Registration No. 3216952 issued to Coors Brewing Company on March 13, 2007; Section 8
affidavit accepted and Section 15 affidavit acknowledged. No claim is made to the exclusive
right to use the terms “Crafted By” and “Master Brewers” apart from the mark as shown.
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MEISTER BRAU for “flavored and unflavored drinking water,
fruit drinks, fruit juices, soft drinks,
carbonated and non-carbonated drinking
water, beer, sports drinks, energy drinks and
malt liquor” in International Class 32;8 and
FANTASY
BREWMASTERS
for “brewery services” in International Class
40.9
In the context of this du Pont factor, we find little probative value in the fact, for
example, that “Brew Master” was registered for a rubber hose inasmuch as rubber
hoses are unrelated to registrant’s hand-held electronic device. Similarly, we find
little probative value in the fact that “Fantasy Brewmasters” (having a disclaimer of
the word “Brewmasters”) was registered for “brewery services.” As seen from the
dictionary definition above of “brewmaster,” it seems that the pluralized term
“Brewmasters” would be highly descriptive, if not generic, for Fantasy’s “brewery
services.” Moreover, Miller/Coors’ two third-party registrations having “Master
Brewers” in the marks change the shared term herein (“Brew”) into “Brewer,”
pluralize it to “Brewers,” and transpose the two components. Not surprisingly,
Miller/Coors then disclaims the term “Master Brewers” when used in connection
with beer. Finally, as noted by the examining attorney, the term “Meister Brau”
translates as “Master Brew,” and as used with a variety of beverages (including
beer), is hardly probative of the weakness of registrant’s “Brew Master” mark for a
hand-held electronic device.

8 Registration No. 4038861 issued to Red Sky Brands, LLC on October 11, 2011. The
English translation of “Meister Brau” in the mark is “Master Brew.”
9 Registration No. 4102522 issued to Fantasy Brewmasters, LLC on February 21, 2012. No
claim is made to the exclusive right to use the term “Brewmasters” apart from the mark as
shown.
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Furthermore, the weakness of a particular mark is generally determined in the
context of the number and nature of similar marks in use in the marketplace in
connection with similar goods and/or services. See Nat’l Cable Television Ass’n, Inc.
v. Am. Cinema Editors, Inc., 937 F.2d 1572, 19 USPQ2d 1424, 1430 (Fed. Cir.
1991); In re du Pont, 177 USPQ at 567. Alleged evidence of weakness consisting
solely of third-party registrations is generally entitled to little weight in
determining the strength of a mark inasmuch as such registrations do not
establish that the registered marks identified therein are in actual use in the
marketplace or that consumers are accustomed to seeing them. See AMF Inc. v. Am.
Leisure Prods., Inc., 177 USPQ 268, 269 (CCPA 1973); In re Davey Prods. Pty Ltd.,
92 USPQ2d 1198, 1204 (TTAB 2009); and In re Thor Tech, Inc., 90 USPQ2d 1634,
1639 (TTAB 2009).
Accordingly, we find that this du Pont factor, at best for applicant, is a neutral
factor in our likelihood of confusion determination.
C. Relationship of the Goods / Trade Channels
We next turn our attention to the relationship of the goods as they are identified
in the registration and application. Octocom Systems, Inc. v. Houston Computers
Services Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed.
Cir. 2002). It is settled that it is not necessary that the respective goods be identical
or even competitive in order to find that they are related for purposes of our
likelihood of confusion analysis. That is, the issue is not whether consumers would
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confuse the goods themselves, but rather whether they would be confused as to the
source of the goods. See In re Rexel Inc., 223 USPQ 830 (TTAB 1984). The goods
need only be sufficiently related that consumers would be likely to assume, upon
encountering the goods under similar marks, that the goods originate from, are
sponsored or authorized by, or are otherwise connected to the same source. See In re
Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir.
1984); In re Melville Corp., 18 USPQ2d 1386 (TTAB 1991).
Consistent with the identification of goods, applicant’s web pages show that its
goods are computer software applications for smart mobile devices targeted to home
brewers. Registrant’s goods involve hardware – a dedicated, hand-held electronic
device – capable of displaying an array of information about beers. According to
registrant’s identification of goods and copies of documentation from registrant’s
device placed into the record, the target audience would be craft beer aficionados.
While applicant’s class 9 goods are software and registrant’s class 9 goods are
hardware, the examining attorney has demonstrated from a variety of Internet
sources the close relationship, in general, between computer hardware products
and computer software products. See also In re Iolo Technologies LLC, 95 USPQ2d
1498, 1500 (TTAB 2010) (finding although there is no per se rule that computer
goods and/or services are related, applicant’s “product [ ] is complementary in
function and purpose” to the services recited in the cited registration).
Nonetheless, applicant argues “that there is little if any relation between the
goods of the Applicant and the goods found in the cited [registration].” We disagree,
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and find that while registrant’s hardware and applicant’s software do not appear to
be competitive products, they are clearly related. There are no limitations as to
trade channels or classes of purchasers on either set of goods, and it seems quite
logical to assume that the category of home brewers of beer is largely subsumed by
the population of craft beer aficionados. While applicant argues that registrant and
applicant are using different channels for marketing and selling their respective
goods, the question of likelihood of confusion is determined based on the description of
the goods stated in the application and registration at issue. Hence, we cannot resort
to applicant’s extrinsic evidence in order impermissibly to restrict either applicant’s
or registrant’s goods. See, e.g., In re La Peregrina Ltd., 86 USPQ2d 1645, 1647
(TTAB 2008) (applicant cannot rely on registrant’s website to restrict the scope of
registrant's goods); and In re Bercut-Vandervoort & Co., 229 USPQ 763, 764 (TTAB
1986) (extrinsic evidence that relevant goods are expensive wines sold to
discriminating purchasers must be disregarded given the absence of any such
restrictions in the application or registration).
Accordingly, these du Pont factors weigh in favor of a finding of likelihood of
confusion.
D. Conditions of Sale
As to the degree of care that will be exercised by applicant’s customers,
applicant argues that inasmuch as its software applications are designed
exclusively for home brewers with smart phones and similar mobile devices, its
purchasers should be deemed to be sophisticated. Similarly, despite applicant’s
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dismissive characterization of registrant’s goods (e.g., “a novelty device containing
beer ratings, toasts from around the world, bar games, jokes, beer-related
nutrition information, beer-and-food pairings, hangover tips, and phone numbers
for taxis in major cities”), applicant nonetheless argues that registrant’s customers
too might well be sophisticated.
However, the record shows that applicant’s and registrant’s respective goods
sell for somewhere between eight and seventeen dollars. Goods sold at these price
points are generally presumed to be impulse items – not wares subject to lengthy
deliberations warranting a higher standard of care on the part of prospective
consumers.
On yet the other hand, even assuming that some of the relevant consumers are
sophisticated, the fact that many of the purchasers of applicant’s goods may be
knowledgeable in the field of home brewing does not necessarily mean that they are
immune from source confusion when marks are substantially the same. See In re
Cynosure, Inc., 90 USPQ2d 1644 (TTAB 2009); In re Decombe, 9 USPQ2d 1812
(TTAB 1988); and In re Pellerin Milnor Corp., 221 USPQ 558 (TTAB 1983).
At best for applicant, this too is determined to be a neutral du Pont factor.
E. Lack of Actual Confusion
Applicant argues that its mark has been in continuous use for more than three
years without actual confusion between applicant’s and registrant’s respective
marks. We do not find this argument persuasive.
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The contemporaneous use of applicant’s and registrant’s marks for a period of
three years without actual confusion is entitled to little weight. See Majestic
Distilling Co., Inc., 65 USPQ2d at 1205 (“uncorroborated statements of no known
instances of actual confusion are of little evidentiary value”). See also In re Bisset-
Berman Corp., 476 F.2d 640, 177 USPQ 528, 529 (CCPA 1973) (stating that self-
serving testimony of applicant’s corporate president’s unawareness of instances of
actual confusion was not conclusive that actual confusion did not exist or that there
was no likelihood of confusion).
Of course, the test under Trademark Act § 2(d) is whether there is a
likelihood of confusion, and it is unnecessary for the examining attorney in an
ex parte case to show actual confusion in establishing likelihood of confusion.
See In re Kangaroos U.S.A., 223 USPQ 1025, 1026-27 (TTAB 1984) (“applicant’s
assertion that it is unaware of any actual confusion occurring as a result of the
contemporaneous use of the marks of applicant and registrant is of little probative
value in an ex parte proceeding such as this where we have no evidence
pertaining to the nature and extent of the use by applicant and registrant (and
thus cannot ascertain whether there has been ample opportunity for confusion to
arise, if it were going to); and the registrant has no chance to be heard from (at
least in the absence of a consent agreement, which applicant has not submitted in
this case).”). Similarly, the plaintiff in an inter partes case does not need to show
actual confusion in order to establish likelihood of confusion. See Weiss Assocs.
Inc. v. HRL Assocs. Inc., 902 F.2d 1546, 1549, 14 USPQ2d 1840, 1842-43 (Fed.
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Cir. 1990); Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ
390, 396 (Fed. Cir. 1983); and J.C. Hall Co. v. Hallmark Cards, Inc., 340 F.2d 960,
144 USPQ 435, 438 (CCPA 1965);.
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 in this case.
F. Balancing the factors
In view of the facts that the respective marks are similar, that registrant’s cited
mark has not been shown to be diluted, that the respective goods are related, and
inasmuch as we find no proof that either registrant’s purchasers or applicant’s
purchasers can be presumed to exercise a heightened degree of care in making these
purchases, we find that applicant’s registration of the iBrewMaster mark is likely to
cause confusion.
Decision: The refusal to register applicant’s iBrewMaster mark under Section
2(d) of the Lanham Act is hereby affirmed.