North Lock LLCv.C.V. Brewing Co.

Trademark Trial and Appeal Board

Sep 16, 2016

No. 91219821 (T.T.A.B. Sep. 16, 2016)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 16, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

North Lock LLC
v.
C.V. Brewing Co.
_____

Opposition No. 91219821
_____

David Ludwig of Dunlap Bennett & Ludwig for North Lock, LLC.

David V. Humphrey, Jr., Esq. for C.V. Brewing Co.
_____

Before Shaw, Greenbaum and Pologeorgis,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Applicant, C.V. Brewing Co., seeks registration on the Principal Register of the
mark MONUMENTOUS (in standard characters) for “Beer, ale and lager in
International Class 32.1
Opposer, North Lock LLC, has opposed registration of Applicant’s mark on the
ground that as used on Applicant’s goods, the mark so resembles Opposer’s previously
used and registered mark MONUMENTAL (in standard characters) for “Beer and

1 Application Serial No. 86312460 was filed on June 17, 2014, based upon Applicant’s claim
of first use anywhere and use in commerce since at least as early as August 30, 2013.
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ale”2 in International Class 32, as to be likely to cause confusion under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d).
By its answer, Applicant denied the salient allegations of the Notice of
Opposition.3
For purposes of this proceeding, we focus, as did the parties, on Opposer’s pleaded
registration. Opposer’s claim of common law rights is unnecessary, and we have not
considered it in making our decision.
I. Evidentiary Objections
A. Opposer’s Objections
1. Testimony of Applicant’s Witnesses
Opposer objects to ¶¶ 10-15 of Applicant’s witness David Humphrey concerning
the adequacy of Opposer’s survey evidence, and ¶¶ 4, 11-12 of Applicant’s witness
Christopher Anderson regarding “technical and specialized issues related to beer

2 Reg. No. 3946094 registered on April 12, 2011. Section 8 Affidavit accepted; Section 15
Affidavit acknowledged.
3 In its answer, Applicant pleaded eight putative and actual affirmative defenses. Of these,
the affirmative defenses of laches, acquiescence, wavier, estoppel, and unclean hands, and
the “affirmative defense” of failure to state a claim, were not pursued at trial, and therefore
are deemed waived. See Alcatraz Media, Inc. v. Chesapeake Marine Tours Inc. dba
Watermark Cruises, 107 USPQ2d 1750, 1753 n.6 (TTAB 2013). Applicant’s “affirmative
defenses” that Applicant’s mark is distinctive, there is no likelihood of confusion, and the
term “monument” is diluted and/or weak, are merely amplifications of Applicant’s denials in
its answer, and are not considered true affirmative defenses that require separate
consideration. Finally, absent a counterclaim to cancel Opposer’s pleaded registration, we
cannot entertain Applicant’s affirmative defense that the pleaded mark is generic, as it is an
attack on the validity of the registration. See 37 CFR § 2.106(b) and 37 CFR § 2.114(b);
Nasalok Coating Corp. v. Nylok Corp., 522 F.3d 1320, 86 USPQ2d 1369, 1373 n.3 (Fed. Cir.
2008) (“The Board’s rules of procedure in trademark cases provide that invalidity of a
registration pleaded in an opposition or cancellation proceeding is a compulsory
counterclaim.”).
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making,”4 claiming the foregoing is expert testimony, but Applicant provided no
information to qualify either witness as an expert, and Applicant did not serve any
expert disclosures. Opposer also objects to ¶¶ 10-15 and 19 of Mr. Humphrey’s
testimony to the extent he testifies as a lay witness concerning his opinions about the
sufficiency of Opposer’s survey evidence and the purported descriptiveness of
Opposer’s mark.
Applicant has not presented either witness as an expert. However, there is no
question that both witnesses are knowledgeable in the field of craft brewing. In
addition to co-founding Applicant, Mr. Anderson testified that has been Applicant’s
Chief Operating Officer and Head Brewer since Applicant was founded in 2012, and
his “responsibilities include management of all warehouse, brewing, production,
packaging and delivery aspects of [Applicant]. This also includes designing the
recipes for all beers produced by [Applicant]”, including “the creation and naming of
the beer that is the subject matter of this [] opposition.”5 Mr. Anderson also testified
that he has been a brewer for more than 20 years and is very familiar with different
styles of beer.6 For his part, Mr. Humphrey testified that he is Applicant’s “Co-
founder and Chief Executive Officer and Chief Legal Counsel,” and as CEO and Chief
Legal Counsel, he “oversee[s] the day-to-day operations as well as virtually all aspects

4 22 TTABVUE 2.
5 17 TTABVUE 4, ¶¶ 1-3.
6 17 TTABVUE 4, ¶ 11
Opposition No. 91219821
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of the business including, but not limited to, brand management, marketing, and
legal issues.”7
We view their testimony in the objected-to paragraphs as that of fact witnesses,
and account for the possible bias of their testimony due to their positions as co-
founders (among other things) of Applicant. That Applicant presented both witnesses
as lay witnesses does not categorically disqualify their opinions. Fed. R. Evid. 701
(conditions for allowing the opinion testimony of lay witnesses). Moreover, the Board
generally does not strike testimony taken in accordance with the applicable rules on
the basis of substantive objections; rather, the Board considers such objections when
evaluating the probative value of the testimony at final hearing. See Alcatraz Media,
107 USPQ2d at 1755. We follow that practice here, and have not stricken any of the
objected-to testimony. Nevertheless, we have considered the probative value of each
witness’ testimony in light of Opposer’s objections. For example, we have disregarded
any opinion testimony regarding the ultimate disposition of the likelihood of
confusion claim asserted herein. Id.
2. Applicant’s Trial Exhibits Nos. 1, 4 and 6
Opposer seeks to exclude Applicant’s Trial Exhibits Nos. 1 (list of winners in the
2015 Los Angeles International Beer Competition)8, 4 (cardboard six-pack carriers

7 15 TTABVUE 4, ¶¶ 1-2.
8 14 TTABVUE 7. Applicant’s beer is listed as winning a Gold Medal in the “Rye Beer”
category. 14 TTABVUE 35.
Opposition No. 91219821
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displaying Applicant’s mark)9, and 6 (tap handles displaying Applicant’s mark)10
because they were not produced during discovery. However, Opposer did not make of
record the relevant discovery requests to which these documents respond.
Accordingly, we decline to invoke the estoppel sanction, and have considered the
documents. We note that in any event, the documents are not outcome determinative.
3. Request for Judicial Notice
On the same day that Applicant filed its evidence and testimony, Applicant filed
a separate “Request for Judicial Notice” of a map of the Coachella Valley and a
printout showing that Babe’s BBQ and Brew House is located in Rancho Mirage,
CA.11 Opposer objects to this request, stating that the two items are not appropriate
matters for judicial notice.
Under Fed. R. Evid. 201(b), “The [Board] may judicially notice a fact that is not
subject to reasonable dispute because it: (a) is generally known within the [Board’s]
territorial jurisdiction; or (2) can be accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.” Applicant does not argue, nor do
we find that the “facts” Applicant seeks the Board to notice are generally known
within the territorial jurisdiction of the Board. Further, the printouts do not indicate
that the information contained therein derives from a published authoritative source
or any other established reference source. Accordingly, the materials have not been

9 15 TTABVUE 68.
10 14 TTABVUE 71.
11 18 TTABVUE 2.
Opposition No. 91219821
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considered.12 Cf., e.g., Univ. of Notre Dame du Lac v. J. C. Gourmet Food Imps. Co.,
213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983)
(Board may take judicial notice of dictionary definitions); Safer Inc. v. OMS Invs. Inc.,
94 USPQ2d 1031, 1038 (TTAB 2010) (documents obtained from the Internet may be
admitted into evidence under notice of reliance in the same manner as a printed
publication in general circulation if they show URLs and dates published or accessed
and printed). See also TBMP § 704.12 (2016).
4. Material Attached to Applicant’s Brief
Applicant attached to its brief a one-page printout from the RateBeer.com
website13, to which Opposer has objected. We address this objection below as part of
our discussion on the strength of Opposer’s pleaded mark and the number and nature
of similar marks on similar goods.
B. Applicant’s Objections
Applicant raised several objections to the testimony of Opposer’s witnesses, as
well as to certain material submitted under notice of reliance. The January 5, 2016
Board order deferred until final decision consideration of Applicant’s objections, and
stated
In order to preserve an objection that was seasonably raised at trial, a
party should maintain the objection in its brief on the case, as an
appendix to its brief on the case or in a separate statement of objections

12 We add that consideration of the materials would not have affected the outcome of this
decision, and that Applicant apparently agrees, as Applicant did not mention either
document in its brief.
13 23 TTABVUE 16.
Opposition No. 91219821
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filed with its brief on the case; however, parties are discouraged from
filing objections that are not outcome determinative.14

In its brief, Applicant maintained a hearsay objection to ¶ 16 of the testimony of
Opposer’s witness William Butcher, and an objection as to the probative value of the
survey conducted by Opposer’s expert witness, Brian Sowers. We discuss these
objections below, in the section pertaining to actual confusion.
We overrule Applicant’s repeated hearsay objections to several printed
publications submitted by Opposer as exhibits to Mr. Butcher’s testimony, and under
notice of reliance but about which Mr. Butcher testified, because Mr. Butcher is a
competent witness who testified to the truth of the matters reported in said
publications. See Syngenta Crop Protection Inc. v. Bio-Chek LLC, 90 UPSQ2d 1112,
1117 n.7 (printed publications made of record by notice of reliance are admissible and
probative only for what they show on their face, not for the truth of the matters
contained therein, unless a competent witness has testified to the truth of such
matters).
We also overrule Applicant’s objection, on grounds of relevance, to ¶ 10 of Mr.
Butcher’s testimony concerning awards “allegedly won by Opposer.”15 This testimony
provides background information about Opposer, and is relevant to the strength of
Opposer’s mark. Likewise, we overrule Applicant’s relevancy objections to ¶¶ 11 and
13 of Mr. Butcher’s testimony, as ¶ 11 goes to the channels of trade and ¶ 13 goes to
the commercial strength of Opposer’s mark.

14 13 TTABVUE 1-2.
15 12 TTABVUE 3, ¶ 3(a).
Opposition No. 91219821
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Applicant’s other objections go to the relevance of some of the printed publications
to which Applicant objected on hearsay grounds. However, Applicant did not
maintain any of these objections in its brief and, accordingly, the objections are
deemed waived. See Hard Rock Café Int’l (USA) Inc. v. Elsea, 56 USPQ2d 1504, 1507
n.5 (TTAB 2000) (objection to exhibit raised during deposition but not maintained in
brief is deemed waived).
II. Record
The record consists of the pleadings and, by operation of Trademark Rule
2.122(b), 37 C.F.R. § 2.122(b), the file of involved application Serial No. 86312460.
Pursuant to the parties’ stipulation,16 Opposer submitted the declaration
testimony, with accompanying exhibits, of Opposer’s expert witness Brian Sowers17,
and Opposer’s Founder and Managing Member CEO William Butcher18, and
Applicant submitted the declaration testimony of Applicant’s co-founders David
Humphrey (with accompanying exhibits)19 and Christopher Anderson.20 Both parties
also submitted Notices of Reliance on, among other things, a current TSDR copy of

16 5 TTABVUE 2. The Board approved the stipulation on January 6, 2016. 13 TTABVUE 1.
17 6 TTABVUE.
18 7 TTABVUE (redacted) (confidential version located at 8 TTABVUE).
19 14-15 TTABVUE.
20 17 TTABVUE. As noted above, Mr. Humphrey also is Applicant’s CEO and Chief Legal
Counsel, and Mr. Anderson also is Applicant’s COO and Head Brewer.
Opposition No. 91219821
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Opposer’s pleaded registration.21 In addition, Opposer submitted the rebuttal
declaration testimony of William Butcher22.
Both parties filed briefs, and Opposer filed a reply brief.23
IV. The Parties
Mr. Butcher testified that Opposer is a “craft brewery located in the metropolitan
Washington, DC area.”24 Opposer was founded in 2011, and trades as Port City
Brewing Co.25 Opposer currently brews and sells its beers to the Washington, DC and
Mid-Atlantic market.26 Opposer has won several awards for its craft beers including
“Small Brewery of the Year” at the 2015 Great American Beer Festival, and “Best
Local Brewery” in the Washington City Paper 2015 Reader’s Poll and from the
Washington, DC radio station WTOP 103.5 FM in 2013.27 Opposer has brewed and
sold an India Pale Ale (IPA) style craft beer under the mark MONUMENTAL since
at least as early as February 2011.28 Opposer’s MONUMENTAL IPA has won its own
awards, including Silver (in 2015) and Bronze (in 2012) Medals at the Great
American Beer Festival in Denver, CO, and a Silver Medal at the 2014 Virginia Craft

21 10 TTABVUE 4 (Opposer’s Second Notice of Reliance) and 16 TTABVUE 282 (Applicant’s
Notice of Reliance). Opposer’s First and Third Notices of Reliance are located at 9 TTABVUE
and 11 TTABVUE, respectively.
22 19 TTABVUE (redacted) (confidential version located at 20 TTABVUE).
23 24 TTABVUE (Opposer’s Brief), 27 TTABVUE (Applicant’s Brief), and 28 TTABVUE
(Opposer’s Reply Brief).
24 7 TTABVUE 4, ¶ 3.
25 7 TTABVUE 4, ¶ 4, 1.
26 7 TTABVUE 5, ¶ 5.
27 7 TTABVUE 5, ¶ 6; 7 TTABVUE 10, 13, and 26, respectively.
28 7 TTABVUE 6, ¶ 8.
Opposition No. 91219821
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Brewer’s Festival.29 Opposer also has won five Gold and two Silver Medals at the
2014 World Beer Championships in Chicago, IL, including a Gold Medal for its
MONUMENTAL IPA.30
According to Mr. Anderson, Applicant is a craft brewery located in Thousand
Palms, CA, about ninety miles outside of Los Angeles.31 Applicant does business as
Coachella Valley Brewing Co.32 Since July 2012, Applicant has sold a Rye Double IPA
under the name MONUMENTOUS33, and has sold it to distributors in California and
Arizona.34 Applicant was listed as a Gold Medal winner at the 2015 Los Angeles
International Beer Competition for its MONUMENTOUS beer.35
III. Standing/Priority
As noted above, both parties made Opposer’s pleaded registration of record.
Because Opposer's pleaded registration is of record, is valid and subsisting, and
owned by Opposer, Opposer’s standing to oppose registration of Applicant’s mark is
established and its priority is not in issue as to the goods listed therein. See Empresa
Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed.
Cir. 2014); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844
(Fed. Cir. 2000); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ

29 7 TTABVUE 6, ¶ 10; 7 TTABVUE 10, 101, and 43, respectively.
30 7 TTABVUE 5-6, ¶¶ 6, 10; 7 TTABVUE 18..
31 15 TTABVUE 4, ¶ 3.
32 15 TTABVUE 4, ¶ 1.
33 15 TTABVUE 4, ¶ 5.
34 15 TTABVUE 4, ¶ 4.
35 14 TTABVUE 35.
Opposition No. 91219821
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185 (CCPA 1982); and King Candy Co., Inc. v. Eunice King’s Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108 (CCPA 1974). Moreover, Applicant does not contest Opposer’s
standing or priority.
We turn now to the issue of likelihood of confusion under Section 2(d).
IV. Likelihood of Confusion
Our likelihood of confusion determination under Section 2(d) is based on an
analysis of all of the probative facts in evidence that are relevant to the factors set
forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA
1973). See also In re Majestic Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201
(Fed. Cir. 2003). Opposer must establish that there is a likelihood of confusion by a
preponderance of the evidence.
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 (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.”). We
consider the likelihood of confusion factors about which the parties introduced
evidence, and treat the remaining factors as neutral.
A. Comparison of the Goods, Channels of Trade, and Conditions of
Sale
We first consider the goods, channels of trade, and conditions of sale. We must
make our determinations under these factors based on the goods as they are
Opposition No. 91219821
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identified in the registration and application. Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys.,
Inc. v. Houston Computers Servs. 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).
The goods are identical in that “beer” and “ale” are identified in both the
application and registration, and the “lager” identified in the application is a type of
beer.36 Applicant does not dispute the identity of the goods, or the attendant
presumptions that the channels of trade and classes of purchasers are the same. In
re Viterra, 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (Board “was
entitled to rely on this legal presumption in determining likelihood of confusion.”); In
re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723 (CCPA 1968) (where
the goods are legally identical, the channels of trade and classes of purchasers are
considered to be the same). “Such trade channels include liquor stores, beer sections
of grocery and convenience stores, and the like, as well as bars and restaurants, and
the customers would include ordinary customers.” In re Bay State Brewing Co., 117
USPQ2d 1958, 1960 (TTAB 2016).
Applicant does not directly address the channels of trade factor, but in the
“Statement of Facts” section of its brief, Applicant states that the parties “do not

36 Dictionary.com (based on the RANDOM HOUSE DICTIONARY (2016)) defines the noun
“lager” as “also called lager beer, a beer stored from six weeks to six months for aging before
use.” The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du
Lac, 213 USPQ at 596, including online dictionaries that exist in printed format or have
regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).
Opposition No. 91219821
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currently distribute their product in any of the same geographies or states.”37 By this
statement, Applicant implies that the channels of trade are different because the
parties sell their goods in different geographical areas. However, purported
geographical differences are not relevant because this is not a concurrent use
proceeding in which the parties seek registrations restricted to separate geographical
areas. Instead, Opposer’s registration is nationwide in scope, and Applicant also
seeks a geographically unrestricted registration. With such a registration, Applicant
could use its mark anywhere in the United States, including the area in which
Opposer uses its mark. Giant Food, Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565,
218 USPQ 390, 393 (Fed. Cir. 1983) (“Applicant seeks a geographically unrestricted
registration under which it might expand throughout the United States. Under these
facts, it is not proper, as the TTAB found, to limit our consideration to the likelihood
of confusion in the areas presently occupied by the parties. Section 7(b) of the
Trademark Act of 1946, 15 U.S.C. § 1057(b), creates a presumption that the
registrant has the exclusive right to use its mark throughout the United States.
Therefore, the geographical distance between the present locations of the respective
businesses of the two parties has little relevance in this case.”).
The identity in the goods and their trade channels are factors that weigh heavily
in favor of a finding of likelihood of confusion.
Further, absent any record evidence to the contrary, we take judicial notice that
beer often is relatively inexpensive, subject to impulse purchase, and ordered verbally

37 23 TTABVUE 7.
Opposition No. 91219821
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in a bar or restaurant. Bay State, 117 USPQ2d at 1960. “When products are relatively
low-priced and subject to impulse buying, the risk of likelihood of confusion is
increased because purchasers of such products are held to a lesser standard of
purchasing care.” Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899
(Fed. Cir. 2000); Specialty Brands, Inc. v. Coffee Bean Distribs. Inc., 748 F.2d 669,
223 USPQ 1281, 1282 (Fed. Cir. 1984). Therefore, the du Pont factor of the conditions
of sale also weighs in favor of a finding of a likelihood of confusion.
B. Strength of Opposer’s Mark/Number and Nature of Third-Party Marks
We turn next to the strength of Opposer’s mark, MONUMENTAL, in order to
determine the scope of protection to be accorded the mark as we analyze the other du
Pont factors. In making this assessment, we consider both the inherent strength of
the mark, based on the nature of the mark itself, and the mark’s commercial strength,
based on the marketplace recognition value of the mark. See In re Chippendales USA,
Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is
measured both by its conceptual strength (distinctiveness) and its marketplace
strength (secondary meaning).”); Couch/Braunsdorf Affinity, Inc. v. 12 Interactive,
LLC, 110 USPQ2d 1458, 1476 (TTAB 2014). Commercial or market strength is the
extent to which the relevant public recognizes a mark as denoting a single source.
Tea Bd. of India v. Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006). “In
other words, it is similar to acquired distinctiveness.” Couch/Braundsdorf, 110
USPQ2d at 1476.
Opposition No. 91219821
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Although Opposer did not plead or argue that its mark MONUMENTAL is strong
or famous, Opposer contends in its brief that the “MONUMENTAL mark is
inherently distinctive,”38 and Opposer contends in its reply brief that the mark is
inherently distinctive and that it has acquired secondary meaning. By contrast,
Applicant contends that Opposer’s mark is “descriptive” of the “nature of the goods,”
and “it is entitled to little protection” because it is “just one of many beers named
‘Monumental[.]’”39 Applicant’s argument that Opposer’s mark is “descriptive” would
be an impermissible collateral attack absent a counterclaim, and therefore we have
considered it only in the context of general conceptual weakness. See Fort James
Operating Co. v. Royal Paper Converting Inc., 83 USPQ2d 1624, 1626 n.1 (TTAB
2007). Applicant’s only evidence of the “many” other “beers named ‘Monumental’”
comprises a one-page printout from the commercial website RateBeer.com, which
Applicant attached to its brief.40 In its reply brief, Opposer objects to this evidence
because Applicant did not produce it during discovery, and Applicant did not make it
of record at trial. We sustain the objection on both grounds, and give the document
no further consideration. See Panda Travel Inc. v. Resort Option Enters. Inc., 94
USPQ2d 1789, 1792-93 (TTAB 2009) (documents not produced until after the start of
trial stricken); Lincoln Nat’l Corp. v. Anderson, 110 USPQ2d 1271, 1274 n.5 (TTAB

38 21 TTABVUE 15.
39 23 TTABVUE 7.
40 23 TTABVUE 16.
Opposition No. 91219821
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2014) (evidence submitted for the first time with applicant’s trial brief not
considered).
1. Inherent/Conceptual Strength
THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (2011) defines
“monumental” as: “(1) Of, resembling, or serving as a monument. (2) Impressively
large, sturdy, and enduring. (3) Of outstanding significance: Einstein’s monumental
contributions to physics. (4) Astounding: monumental cowardice; monumental
talent.”41 With regard to Opposer’s selection of this term, Mr. Butcher testified
I chose the name MONUMENTAL for Port City’s IPA because I felt that
it invoked the importance of this beer to the overall Port City brand and
lineup of craft beers. In addition, I chose the name because we are a DC-
area brewery, and I felt that the name pays tribute to the nation’s
capital, which is sometimes referred to as “The City of Monuments.”42

Applicant points to the first sentence of the quoted testimony as support for its
position that MONUMENTAL describes a quality or characteristic of Opposer’s beer.
We do not read that sentence, either alone, or with the following sentence, in that
manner. Instead, we find that the mark MONUMENTAL is a clever play on the first
and third dictionary definitions listed above, and these meanings overshadow any
laudatory significance of the term. Further, there is no record evidence to support a
finding that the term “monumental” is anything other than arbitrary with respect to
beer and ale. We therefore find the mark MONUMENTAL conceptually strong for
beer and ale.

41 We take judicial notice of this definition. See Red Bull, 38 USPQ2d at 1377.
42 7 TTABVUE 6, ¶ 9.
Opposition No. 91219821
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2. Commercial/Market Strength
As for commercial strength, Mr. Butcher testified that Opposer is an “award-
winning craft brewery,”43 founded in 2011, that has received “numerous awards and
nationwide recognition for its craft beers,”44 including its MONUMENTAL beer, at
festivals and competitions around the United States. Most notably, Opposer was
named “Small Brewery of the Year” at the 2015 Great American Beer Festival,45
Opposer won five Gold Medals (including a Gold Medal for its MONUMENTAL beer)
and two Silver Medals at the 2014 World Beer Championships in Chicago, IL,46 and
Opposer’s MONUMENTAL IPA won Silver (in 2015) and Bronze (in 2012) Medals at
the Great American Beer Festival in Denver, CO,47 and a Silver Medal at the 2014
Virginia Craft Brewer’s Festival.48 Opposer has been featured in Wine Enthusiast
Magazine (which has over 182,000 readers, according to Mr. Butcher),49 and the
Washington City Paper named Opposer the “Best Local Brewery” in 2015,50 as did
the Washington, DC radio station WTOP in 2013.51 Local television stations and The
Washington Post also have promoted Opposer.52 This evidence collectively supports

43 7 TTABVUE 4, ¶ 3.
44 7 TTABVUE 5, ¶ 6.
45 7 TTABVUE 6, ¶ 10; 7 TTABVUE 10.
46 7 TTABVUE 5-6, ¶¶ 6, 10; 7 TTABVUE 18.
47 7 TTABVUE 6, ¶ 10; 7 TTABVUE 10 and 101, respectively.
48 7 TTABVUE 6, ¶ 10; 7 TTABVUE 43.
49 7 TTABVUE 5, ¶ 6; 7 TTABVUE 47.
50 7 TTABVUE 5, ¶ 6; 7 TTABVUE 13.
51 7 TTABVUE 5, ¶ 6; 7 TTABVUE 26.
52 7 TTABVUE 5-6, ¶ 7; 7 TTABVUE 63, 65.
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a finding that Opposer and its MONUMENTAL beer have achieved at least some
degree of recognition in the market for craft beer.
Opposer also submitted confidential testimony from Mr. Butcher and evidence
regarding annual dollar sales of, and marketing expenditures for, its
MONUMENTAL IPA from 2011 through September 2015, and Mr. Butcher testified
to the number of barrels and cases produced in 2014.53 We give limited weight to
these figures because they lack context. See Bose Corp. v. QSC Audio Prods. Inc., 293
F.3d 1367, 63 USPQ2d 1303, 1309 (Fed. Cir. 2002) (“some context in which to place
raw statistics is reasonable. The Board suggested that one form of such context would
be the substantiality of the sales or advertising figures for comparable types of
products.”). Nonetheless, the figures support a finding that Opposer has enjoyed some
financial success in sales of craft beer under its MONUMENTAL mark.
We also bear in mind that there is no record evidence of third-party use of the
term MONUMENTAL by any other beverage company,
Based on the totality of this record, we find that Opposer’s mark MONUMENTAL
has attained some commercial strength in the craft beer market.
C. Comparison of the Marks
We turn then to the du Pont factor of the similarities and dissimilarities between
Applicant’s mark MONUMENTOUS and Opposer’s mark MONUMENTAL. We
analyze “the marks in their entireties as to appearance, sound, connotation and

53 These figures are confidential, and therefore we discuss them only in general terms.
Opposition No. 91219821
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commercial impression.” Viterra, 101 USPQ2d at 1908 (quoting du Pont, 177 USPQ
at 567). See also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee
En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). Further, “[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.” 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)). The focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of trademarks. In re Binion, 93 USPQ2d 1531 (TTAB 2009); Sealed Air Corp. v. Scott
Paper Co., 190 USPQ 106 (TTAB 1975).
In comparing the marks, we are mindful that where, as here, Opposer’s and
Applicant’s identified goods are identical, the degree of similarity between the marks
necessary to find likelihood of confusion need not be as great as where there is a
recognizable disparity between the goods. Coach Servs., 101 USPQ2d at 1721;
Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698,
1700 (Fed. Cir. 1992); United Global Media Grp., Inc. v. Tseng, 112 USPQ2d 1039,
1049 (TTAB 2014).
The marks are similarly constructed, with the same number of syllables and
cadence, and they share the same root word “monument.” The marks also are similar
in sound. The marks differ only in their suffixes. Opposer’s mark ends with the letters
Opposition No. 91219821
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“al,” resulting in the recognized word “monumental.” Applicant’s mark ends with the
letters “ous,” resulting in the coined term “monumentous.” Such a slight difference in
sound and appearance does not obviate the similarities of the marks. See, e.g., Crocker
Nat’l Bank v. Canadian Imperial Bank of Commerce v. Wells Fargo Bank, Nat’l Assn,
811 F.2d 1490, 1 USPQ2d 1813, 1817 (Fed. Cir. 1987) (COMMCASH and
COMMUNICASH confusingly similar). As for meaning, as we mentioned above,
“monumental” is defined as “Of outstanding significance [such as] Einstein’s
monumental contributions to physics.” “Monumentous” is not a recognized word, but
it looks and sounds like a combination of the known words “monumental” and
“momentous,” the latter of which is defined as “important, consequential.”54 The
combination of two terms with highly similar meanings results in a term that
consumers may view as a neologism meaning something even more “important” or
“significant” than either “monumental” or “momentous” standing alone. When viewed
in their entireties, Applicant’s mark MONUMENTOUS and Opposer’s mark
MONUMENTAL therefore are similar in appearance, sound, connotation, and
commercial impression. The first du Pont factor thus weighs in favor of finding a
likelihood of confusion.
Applicant’s contention that Applicant and Opposer actually may display their
marks with the names and locations of their breweries and different designs does not
affect this analysis. Because Applicant’s and Opposer’s marks are presented in

54 Dictionary.com based on the RANDOM HOUSE DICTIONARY (2016). See Red Bull, 38
USPQ2d at 1377.
Opposition No. 91219821
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standard characters, each may display their marks in any lettering style, and with or
without any design or house mark. Cf. Citigroup Inc. v. Capital City Bank Grp. Inc.,
637 F.3d 1344, 98 USPQ2d 1253, 1256 (Fed. Cir. 2011) (noting that standard
character marks are not limited to any particular presentation); Vornado, Inc. v.
Breuer Elec. Mfg. Co., 390 F.2d 724, 156 USPQ 340, 342 (CCPA 1968) (noting that
“the display of a mark in a particular style is of no material significance since the
display may be changed at any time as may be dictated by the fancy of the applicant
or the owner of the mark”); Frances Denney v. Elizabeth Arden Sales Corp., 263 F.2d
347, 120 USPQ 480, 481 (CCPA 1959) (“In determining the applicant’s right to
registration, only the mark as set forth in the application may be considered; whether
or not the mark is used with an associated house mark is not controlling.”).
D. Actual confusion
Opposer contends that there has been actual confusion among potential
consumers of Opposer’s MONUMENTAL beer, and Applicant’s MONUMENTOUS
beer, and has submitted the testimony of Mssrs. Butcher and Sowers, along with Mr.
Sower’s survey and expert report, in support of this contention.
1. Mr. Butcher’s Testimony
In his affidavit, Mr. Butcher testified that
In October 2014, I attended the 2014 Great American Beer Festival in
Denver, Colorado on behalf of Port City. During that Festival, a
gentleman approached our table and told me: “Hey, I just had your beer
over there at that other table,” motioning to the California section of the
Festival Hall. I asked where he had it, and he told me, “Coachella
Valley.” It was my understanding based on these comments that this
individual was confused between Port City’s MONUMENTAL® IPA and
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the “Monumentous” IPA sold by CV Brewing Co., which trades as
Coachella Valley Brewing Co.55

Applicant objects to this testimony as inadmissible hearsay, while Opposer contends
that the testimony is admissible not for the truth of the referenced statements, but
to show that the statements were made to Mr. Butcher. We agree with Opposer, and
do not exclude this testimony. See Toys “R” Us, Inc. v. Lamps R Us, 219 USPQ 340,
346 (TTAB 1983) (out-of-court statements admissible to show “that people have, in
fact, made an association” between the parties). However, one inquiry of affiliation
between the parties is, at best, minimally probative of actual confusion. Compare
Couch/Braunsdorf, 110 USPQ2d at 1479 (inquiries to company whether other
company that issued coupons was the same company is not evidence of actual
confusion); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1334
(TTAB 1992) (inquiries of affiliation not actual confusion); Elec. Water Conditioners,
Inc. v. Turbomag Corp., 221 USPQ 162, 164 (TTAB 1984) (“That questions have been
raised as to the relationship between firms is not evidence of actual confusion of their
trademarks.”) (citations omitted); Toys “R” Us, 219 USPQ at 345-46 (of such inquiries,
the Board said “we do not find that the evidence has much probative value on the
issue of likelihood of confusion”); with First Int’l Servs. Corp. v. Chuckles Inc., 5
USPQ2d 1628, 1634 (TTAB 1988) (where an opposer’s franchisee, presumably a
sophisticated businessperson familiar with the opposer’s business, made such an
inquiry, it was more probative).

55 7 TTABVUE 8, ¶ 16.
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2. Mr. Sowers’ Testimony and Expert Survey
In his expert report concerning the likelihood of confusion survey he conducted for
Opposer, Mr. Sowers concluded that
It is my opinion to a reasonable degree of professional certainty that the
introduction of MONUMENTOUS as a brand name for a craft or
microbrewed beer is likely to cause confusion with Port City Brewing
Company’s MONUMENTAL mark among relevant purchasers. After
subtracting the results from an appropriate control to account for
guessing and other forms of noise, the net confusion result was 15.0%.
It is my understanding these results are above the levels that have been
held by courts to be probative of likelihood of confusion.56

Mr. Sowers reached this conclusion by “combin[ing] data from questions Q3, Q5,
and Q7.”57 Each of those questions show participants images of MONUMENTOUS
and MONUMENTAL, both in block form, and ask
Q3: Do you believe the brand name of beer in the first image is produced
by [a different brewing company; the same brewing company; don’t
know/no opinion] as the brand name of beer in the second image?

Q5: Do you believe that the two brewing companies [do not have an
affiliation or connection; do have an affiliation or connection; don’t
know/no opinion]?

Q7: Do you believe that [one of the brewing companies needed
permission or approval from the other; neither brewing company needed
permission or approval from the other; don’t know/no opinion] to use its
name?

Applicant timely raised several objections to the Sowers survey, but preserved
only one of them in its brief: that the survey is flawed because it presented the test
and control marks in block letters rather than how consumers would encounter the

56 6 TTABVUE 20.
57 6 TTABVUE 20.
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marks in the marketplace.58 However, when an applicant seeks registration for a
mark in standard characters, it is appropriate in a survey to display the mark in block
letters. See Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1830
n.20 (TTAB 2015) (“This proceeding is about whether Applicant may register as a
trademark the term WINEBUD without limitation to any particular style, color, or
size for use on …. Had Dr. Blair focused his survey on any particular presentation of
Applicant’s mark … he would have unnecessarily restricted the survey to that
presentation, although the registration Applicant seeks is not so limited.”); Miles
Labs. Inc. v. Naturally Vitamin Supplements Inc., 1 USPQ2d 1445, 1460 (TTAB 1986)
(use of block letters is appropriate in a survey when applicant’s word mark does not
include any design features or stylization).
Nonetheless, survey evidence is subject to review for its probative value, based on
factors including the design of the survey, the questions asked and the experience of
the surveyor. In re Hotels.com LP, 573 F.3d 1300, 91 USPQ2d 1532, 1536 (Fed. Cir.
2009). With this in mind, we question whether Mr. Sowers included in the 15% net
confusion result participants who indicated they were confused in whole or in part
because the marks appeared in the same block font, or whether he excluded or
otherwise adjusted for them as “other forms of noise.” The following statements
illustrate this issue: “The similarity in the names and the way the logos look like one
another with the same font type, same font color …”59, “Font, size and style are

58 The other objections are waived. See Hard Rock Café, 56 USPQ2d at 1507 n.5.
59 16 TTABVUE 169.
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similar”60, and “Font and similar sounding names.”61 In raising the issue, Applicant
represents that there are 29 such examples (of 196 responses), and in its reply brief,
Opposer did not dispute this figure.
In addition, Opposer states that the survey questions followed the “Eveready”
format in that questions Q5 and Q7 concern affiliation and connection of the two
brewing companies. Such surveys generally involve showing participants the junior
mark and asking them to name the company they think puts out the mark (and then
why they think that or whether they can name any other products made by that
brand) with the assumption that they are aware of the senior mark from prior
experiences (i.e., the senior mark is strong). See Union Carbide Corp. v. Ever-Ready,
Inc., 531 F.2d 366, 188 USPQ 623 (7th Cir. 1976). The Board has accepted this type of
survey, and it has been called the “model” or “gold standard” in likelihood of confusion
cases.62 However, this survey format is generally used in cases where the senior mark
is alleged to be famous or very strong. There is no such allegation in this case.63
Other survey formats are certainly possible, and, indeed, a survey, if properly
conducted and with certain results, may be regarded as evidence akin to actual
confusion. See Blue Cross & Blue Shield Ass’n v. Harvard Cmty. Health Plan Inc., 17
USPQ2d 1075, 1078 n.7 (TTAB 1990). However, in light of the flaws discussed above,

60 16 TTABVUE 170.
61 16 TTABVUE 173.
62 Likelihood of Confusion Studies and the Straightened Scope of Squirt, 96 Trademark Rep.
739, 749 (2008).
63 Nor did the survey include any questions asking participants to identify the company
behind the mark.
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we do not find that the Sowers survey supports a finding of actual confusion. Nor is
it particularly probative of the question of likelihood of confusion.
We treat the du Pont factor regarding actual confusion as neutral.
E. Effect of Approval for Publication
Finally, contrary to Applicant’s position, the fact that the Examining Attorney
approved publication of Applicant’s mark is of little to no probative value. At a
minimum, the record in the ex parte examination of Applicant’s application forms
only part of the record in this inter partes proceeding. Moreover, previous decisions
by examining attorneys are without evidentiary value and are not binding on the
Board. See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001)
(determinations made by prior examining attorneys are not binding on the Board); In
re Davey Prods. Pty., 92 USPQ2d 1198, 1206 (TTAB 2009).
V. Conclusion
We conclude, after considering all evidence and arguments bearing on the relevant
du Pont factors, including the evidence and arguments that we have not specifically
discussed herein, that Applicant’s mark MONUMENTOUS, as used on the goods
identified in the application, so resembles Opposer’s registered mark
MONUMENTAL as used on the identical goods identified in the registration, as to be
likely to cause confusion, mistake, or deception. In view thereof, Opposer has proved
its claim under Section 2(d) of the Trademark Act.

Decision: The opposition is sustained and registration to Applicant is refused.