Lord Lion Winery LLC

Trademark Trial and Appeal Board

May 11, 2020

87808799 (T.T.A.B. May. 11, 2020)

Mailed: May 11, 2020
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Lord Lion Winery LLC
_____
Serial No. 87808799
_____
Michael G. Atkins of Atkins Intellectual Property, PLLC
for Lord Lion Winery LLC.

Lakeisha S. Munn Lewis, Trademark Examining Attorney, Law Office 105,
Jennifer Williston, Managing Attorney.
_____
Before Kuczma, Adlin and Larkin, Administrative Trademark Judges.
Opinion by Adlin, Administrative Trademark Judge:
Applicant Lord Lion Winery LLC seeks registration of LORD LION WINERY (in
standard characters, WINERY disclaimed) for “wine.”1 The Examining Attorney
refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on
the ground that Applicant’s mark so resembles the registered mark LORD LYON (in
standard characters) for “beer”2 that use of Applicant’s mark in connection with
Applicant’s goods is likely to cause confusion. After the refusal became final,

1 Application Serial No. 87808799, filed February 23, 2018 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on an alleged bona fide intent to use the mark in
commerce.
2 Registration No. 5452499, issued April 24, 2018.
This Opinion is Not a
Precedent of the TTAB
Serial No. 87808799
2
Applicant appealed and filed a request for reconsideration which was denied. The
appeal is fully briefed.
I. Likelihood of Confusion
Our determination under Section 2(d) is based on an analysis of all of the
probative evidence of record bearing on the likelihood of confusion. In re E.I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth
factors to be considered); see also In re Majestic Distilling Co., 315 F.3d 1311, 65
USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each du Pont factor about
which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129
USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two
key considerations are the similarities between the marks and the similarities
between the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry mandated by § 2(d)
goes to the cumulative effect of differences in the essential characteristics of the goods
and differences in the marks.”).
A. The Marks
We must consider the marks “in their entireties as to appearance, sound,
connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005) (quoting du Pont, 177 USPQ at 567). Notwithstanding Applicant’s vigorous
arguments to the contrary, “[s]imilarity in any one of these elements may be sufficient
to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d
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1742, 1746 (TTAB 2018), aff’d 777 F. Appx. 516 (Fed. Cir. 2019) (quoting In re Davia,
110 USPQ2d 1810, 1812 (TTAB 2014)).
1. Sound
Obviously, the marks sound almost identical, because LORD LION and LORD
LYON would be pronounced the same. We have not ignored the trailing term
WINERY in Applicant’s mark, but it is relatively insignificant in our analysis because
LORD LION comes first. 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”); see also, Palm Bay
Imports, 73 USPQ2d at 1692; Century 21 Real Estate Corp. v. Century Life of Am.,
970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992). Furthermore, WINERY is
descriptive of (if not generic for) Applicant’s wine, and disclaimed, and thus entitled
to less weight than the mark’s distinctive first term, LORD LION. 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, 224 USPQ at 752); In re Dixie Rests., Inc., 105 F.3d 1405,
41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Binion, 93 USPQ2d 1531, 1534
(TTAB 2009) (BINION’S, not disclaimed word ROADHOUSE, is dominant element of
BINION’S ROADHOUSE); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702
(TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s
commercial impression”).
Serial No. 87808799
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As the Examining Attorney points out, the marks’ close similarity in sound is
particularly important here, because wine and beer are often offered and requested
orally, such as in a bar or restaurant. See In re Bay State Brewing Co., 117 USPQ2d
1958, 1961 (TTAB 2016) (“Beer is often ordered by name, in a bar or restaurant, or
from a menu, where only the name of the beer will be used ….”). Moreover, when this
happens, servers or customers are at least as likely to refer to one of Applicant’s
specific wines as LORD LION, which sounds identical to LORD LYON, as they are to
refer to a specific wine as LORD LION WINERY, which in many contexts would be
stilted and unnecessary. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1188
(TTAB 2018) (recognizing consumers’ “propensity to shorten marks when ordering
them orally” and finding that consumers “may order Registrant’s wine, especially if
purchased by the glass, under the designation LAROQUE alone” rather than the full
mark CHATEAU LAROQUE). As the Examining Attorney also points out, similarity
in sound alone may be enough to establish that the marks are confusingly similar. In
re 1st USA Realty Prof., Inc., 84 USPQ2d 1581, 1586 (TTAB 2007); In re White Swan
Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988). In any event, the marks’ similarities do not
end here.
2. Appearance
The marks also look quite similar, because there is only one letter’s difference
between the cited mark and the dominant, distinctive portion of Applicant’s mark.
We assume that some consumers will not notice this minor difference, especially
when we keep in mind 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
Serial No. 87808799
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commercial impression’ such that persons who encounter the marks would be likely
to assume a connection between the parties.” Coach Servs., Inc. v. Triumph Learning
LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (quoting Leading
Jewelers Guild, Inc. v. LJOW Holdings, LLC, 82 USPQ2d 1901, 1905 (TTAB 2007)).
Again, while the descriptive or generic and trailing term WINERY in Applicant’s
mark is another difference in how the marks look, it is merely a minor one because
WINERY is not distinctive. Aquitaine Wine, 126 USPQ2d at 1185 (the word
CHATEAU in CHATEAU LAROQUE “merely describes a location where wine is
produced and has been disclaimed”). Consumers will perceive the source of
Applicant’s goods as LORD LION and the source of Registrant’s goods as LORD
LYON, terms which appear almost identical.
3. Meaning
Applicant points out that “Lyon” is “unmistakably a surname,” and claims that
“most consumers would associate [it] with Scotland,” perhaps specifically with “the
Court of Lord Lyon,” a “standing court in Scotland that regulates coats of arms and
heraldry” there. By contrast, “lion” means “the apex predator whose natural habitat
is almost exclusively the grasslands and savannahs of Africa.” 10 TTABVUE 4. We
do not quarrel with Applicant’s point that “lion” and “Lyon” may convey different
meanings.
Here, however, this difference in meaning is only part of the story. In fact, the
Examining Attorney has established that “Lion” may also be a surname in the United
States. September 9, 2019 Denial of Request for Reconsideration TSDR 172-173. And
as the Examining Attorney points out, when LION is preceded by LORD, as it is in
Serial No. 87808799
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Applicant’s mark, it “invokes the commercial impression of a person, not an animal
as the applicant suggests.”
We therefore conclude that while some consumers may take a different meaning
from Applicant’s mark than from Registrant’s mark, others would perceive the marks
as conveying a similar meaning in that they both refer to a “lord” and the two lords
have similar names. Some consumers, especially those hearing the marks or not
perceiving their slight difference in appearance, would believe the marks have the
exact same meaning.
4. Commercial Impression
Both marks refer to a “lord.” While some consumers may understand the marks
as referring to different “lords,” the marks are sufficiently similar that many
consumers are likely to be confused as to the source of the alcoholic beverages sold
under the marks. In drawing this conclusion, we have kept in mind: (1) “the fallibility
of memory over a period of time;” (2) that the “average” purchaser “normally retains
a general rather than a specific impression of trademarks;” and (3) that Applicant’s
and Registrant’s marks both identify a “lord” named lion/lyon. Sealed Air Corp. v.
Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975). See also In re St. Helena Hosp.,
774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (“marks must be considered
in light of the fallibility of memory”) (citation, internal quotation marks, and ellipsis
omitted).
5. The Marks Are Similar In Their Entireties
Overall the marks are quite similar. To the extent they convey different meanings
or commercial impressions, these differences could only be understood by those
Serial No. 87808799
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viewing the marks closely and carefully. They may quickly forget the distinction.
Many other consumers, especially those hearing the marks, or viewing them in
passing, may not perceive the differences at all. This factor therefore weighs in favor
of finding a likelihood of confusion.
B. The Goods, Channels of Trade and Classes of Consumers
The goods need not be identical or even competitive in order to find a likelihood of
confusion. Rather, the question is whether the goods are marketed in a manner that
“could give rise to the mistaken belief that [the] goods emanate from the same source.”
Coach Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d
1715, 1724 (TTAB 2007)). See also Hewlett-Packard Co. v. Packard Press Inc., 227
F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (“Even if the goods and services
in question are not identical, the consuming public may perceive them as related
enough to cause confusion about the source or origin of the goods and services.”);
Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“even if
the goods in question are different from, and thus not related to, one another in kind,
the same goods can be related in the mind of the consuming public as to the origin of
the goods”); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1109 (2007).
Here, the Examining Attorney has established through Internet printouts that a
number of third parties use the same mark for wine on the one hand and beer on the
other. For example, Rev Winery & Brewing Company uses REV for both beer and
wine:
Serial No. 87808799
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Witches Winery and Brewing Co. does the same:

June 13, 2018 Office Action TSDR 7, 10, 14-15. Similarly, in 2012 Copp Winery
became Copp Winery and Brewery, and it now offers both wine and beer under its
revised trade name, while Crown Valley, Mackinaw Trail, Spring Gate, Schram
Vineyards Winery & Brewery and Westbend Winery & Brewery each operate a
winery and a brewery under their respective names. January 22, 2019 Office Action
TSDR 68-83, 93-101; September 9, 2019 Denial of Request for Reconsideration TSDR
162-63, 168-69.
A Vine Pair article entitled “Grape and Grain: Nine Winemakers That Are Also
Brewing Craft Beer” recognizes this as a trend. Most of the nine winemakers listed
are not cited above, thus adding to the total number of wineries/breweries included
in the Examining Attorney’s evidence. The article indicates that increasingly “lines
are being crossed, and so too are loyalties to any one beverage.” These trends are
Serial No. 87808799
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“breeding bi-curious imbibers and producers alike,” leading to “the budding
popularity of the hybrid brewery-winery. Across the country, winemakers are
becoming brewers, and brewers turning into vintners.” January 22, 2019 Office
Action TSDR 102-109.
The Examining Attorney also relies on a large number of use-based third-party
registrations showing that the same marks are registered in connection with beer on
the one hand and wine on the other, as follows:
FEASTY

Reg. No. 4978590
IT TAKES A TEXAN

Reg. No. 4833373

Reg. No. 4887801
GOLDEN
GRIZZLY

Reg. No. 5037342
TROPHY ROOM

Reg. No. 5604011

Reg. No. 5096461
LOGIS DE LA
FONT

Reg. No. 5007153

TULASI
Reg. No. 5116240
A CRAFTED
EXPERIENCE

Reg. No. 5159453
TERP

Reg. No. 5166429

Reg. No. 5326773
UBC

Reg. No. 5381909

Reg. No. 5227784
DELICIOUS RED
HARD APPLE
CIDER

Reg. No. 5225052
SPRING GATE

Reg. No. 5301317
CHEERS
BEACHES

Reg. No. 5551925

Reg. No. 5531596
SCHILLINGBRIDGE

Reg. No. 5480757
LAKE LIFE

Reg. No. 5603137
SMALL LIKE

Reg. No. 5565879
Serial No. 87808799
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Reg. No. 4951746
GRIMALDI’S COAL
BRICK-0VEN
PIZZERIA

Reg. No. 4984116
BEAT CULTURE

Reg. No. 5662013

Reg. No. 5760516

Reg. No. 5733907

Id. at 8-67; September 9, 2019 Denial of Request for Reconsideration TSDR 7-136.
“Third-party registrations which cover a number of differing goods and/or services,
and which are based on use in commerce, although not evidence that the marks
shown therein are in use on a commercial scale or that the public is familiar with
them, may nevertheless have some probative value to the extent that they may serve
to suggest that such goods or services are of a type which may emanate from a single
source.” See In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1998).
This evidence establishes that beer and wine are related. It is also consistent with
the records developed in other cases. See, e.g., Anheuser-Busch, LLC v. Innovopak
Sys. Pty Ltd., 115 USPQ2d 1816, 1826-27 (TTAB 2015) (citing cases in which “this
Board has found beer and wine related on a number of occasions … the parties have
not cited any precedential decision holding beer and wine unrelated for purposes of a
likelihood of confusion analysis”).
Serial No. 87808799
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Furthermore, the Examining Attorney has established that beer and wine move
in the same channels of trade to the same consumers. For example, Maize Valley
operates a brewery and a winery, which obviously sells both beer and wine:

June 13, 2018 Office Action TSDR 7, 10-13. Nashoba Winery, Round Barn, Backyard
Barn Winery & Microbrewery, Bulldog Beer & Wine, Corkscrew, Donimion Wine and
Beer, Fenton Winery & Brewery and Lighthouse Beer & Wine also sell both wine and
beer. January 22, 2019 Office Action TSDR 85-92; September 9, 2019 Denial of
Request for Reconsideration TSDR 138-141, 144-148, 153. In addition, there are at
least several wine and beer festivals where wine and beer are served. September 9,
2019 Denial of Request for Reconsideration TSDR 142-43, 149-152. This evidence is
of course also supported by the evidence cited above concerning the relationship
between the goods.
Thus the record also establishes that wine and beer travel in the same channels
of trade to the same classes of consumers. See also Anheuser-Busch, 115 USPQ2d at
Serial No. 87808799
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1827 (“it is clear that beer and other alcoholic beverages (including wine) are sold to
consumers in many of the same channels of trade, including retail outlets such as
liquor stores, supermarkets, convenience stores, restaurants, and bars …”). These
factors therefore also weigh in favor of finding a likelihood of confusion.
Applicant’s attacks on the Examining Attorney’s evidence are unpersuasive.
Applicant claims that “it is unusual for wine and beer to be produced by the same
source under the same mark.” It bases this argument on the fact that the Examining
Attorney only introduced 32 third-party registrations for marks covering both beer
and wine, even though there are allegedly 51,716 registrations in Class 33 (which
covers wine). July 16, 2019 Request for Reconsideration TSDR 6-8. Applicant’s
position is closely analogous to one we have previously rejected for reasons which are
also applicable here:
[t]here is no requirement for goods to be found related that
all or even a majority of the sources of one product must
also be sources of the other product. Therefore, evidence
showing only that the source of one product may not be the
source of another product does not aid applicant in its
attempt to rebut the evidence of the examining attorney.
Second, the mere fact that some goods are not included in
a registration's identification of goods does not establish
that the owner of the mark has not registered the mark for
those goods in another registration since, for example, the
registrant may have begun using the mark on those goods
at a later date. Third, the law recognizes that trademark
owners have different marks that are used as a house
mark, a mark for a line of products, and a mark for specific
items. It is, therefore, to be expected that many
registrations for marks would not cover all of a party's
goods and services.

Serial No. 87808799
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In re G.B.. Tile and Stone, Inc., 92 USPQ2d 1366, 1370 (TTAB 2009). Of course, even
if Applicant’s evidence accurately reflects the state of the register, it may reveal
nothing more than the repeated and consistent refusal of applications covering beer
based on existing registrations of similar marks for wine. The 32 registrations made
of record by the Examining Attorney support the finding that the goods are related.
Similarly, Applicant relies on evidence that there are more than 8,702 wineries in
the United States, and claims that the Examining Attorney’s evidence of “only” 29
wineries/breweries establishes that only a small percentage of wineries produce both
wine and beer. December 11, 2018 Office Action response TSDR Office 115, 119; 10
TTABVUE 7. We find that the relatively voluminous evidence of third-party use of
the same marks for both wine and beer is enough to establish a relationship between
the goods, even if only a relatively small percentage of wineries also produce beer and
a relatively small percentage of breweries also produce wine. Moreover, the Vine Pair
article calls Applicant’s conclusion into question, as it suggests that
breweries/wineries are not at all uncommon and are in fact an increasing trend. The
Examining Attorney’s evidence establishes that the practice is common enough that
those familiar with LORD LION beer may assume that LORD LYON wine comes
from the same source.
Next, Applicant relies on 13 “pairs” of registrations for identical or similar marks
owned by different owners, in which one mark is registered for beer and the other for
wine. December 11, 2018 Office Action response TSDR 138-215. Applicant argues
that “[i]n registering these marks, the USPTO necessarily determined that even
Serial No. 87808799
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identical trademarks can peacefully coexist for both wine and beer.” 10 TTABVUE 8.
Again, Applicant’s evidence does not support its argument. Proving that marks
coexisted on the Register “does not prove that they coexisted during that time without
confusion in the marketplace.” In re Thomas, 79 USPQ2d 1021, 1028 (TTAB 2006).
Furthermore, we do not know whether there are licenses or coexistence agreements,
much less the terms thereof, which could explain the coexistence of these
registrations. Ultimately, “neither the Trademark Examining Attorney nor the Board
is bound to approve for registration an Applicant’s mark based solely upon the
registration of other assertedly similar marks for other goods or services having
unique evidentiary records.” In re Datapipe, Inc., 111 USPQ2d 1330, 1336 (TTAB
2014); see also In re Nett Designs, Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed.
Cir. 2001) (“The Board must decide each case on its own merit …. Even if some prior
registrations had some characteristics similar to Nett Designs’ application, the PTO’s
allowance of such prior registrations does not bind the Board or this court.”).
II. Conclusion
The marks are similar, the goods related and the channels of trade and classes of
consumers overlap. There is therefore a likelihood of confusion.

Decision: The refusal to register Applicant’s mark under Section 2(d) of the
Trademark Act is affirmed.