Pigs Eye Brewing Company, LLC

Trademark Trial and Appeal Board

Feb 14, 2008

No. 78711050 (T.T.A.B. Feb. 14, 2008)

Mailed: February 14, 2008

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Pigs Eye Brewing Company, LLC
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Serial No. 78711050
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Garrett M. Weber of Lindquist & Vennum P.L.L.P. for Pigs
Eye Brewing Company, LLC.

Christopher L. Buongiorno, Trademark Examining Attorney,
Law Office 102 (Karen M. Strzyz, Managing Attorney).
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Before Drost, Kuhlke and Walsh, Administrative Trademark
Judges.

Opinion by Kuhlke, Administrative Trademark Judge:

Pigs Eye Brewing Company, LLC seeks registration on
the Principal Register of the mark PIT BULL (in standard
character form) for goods ultimately identified as “malt
liquor” in International Class 32.1

1 Application Serial No. 78711050, filed September 12, 2005,
alleging first use of the mark anywhere and in commerce on
January 19, 2006 under Section 1(a) of the Trademark Act, 15
U.S.C. §1051(a). The identification of goods in the application
originally included “ale, beer, lager, brewed malt-based
alcoholic beverage containing or treated with flavoring or
coloring or non-standard blending or treating materials or
processes, malt liquor, porter and stout.” Applicant, in its
brief, amended its identification of goods in response to a
requirement made by the examining attorney. While the examining
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 78711050
2
Registration has been refused under Section 2(d) of
the Trademark Act, 15 U.S.C. §1052(d), on the ground that
applicant’s mark, when used with its identified goods, so
resembles the registered mark PIT BULL ENERGY DRINK for
“non-alcoholic beverages, namely, a ready to drink energy
drink” in International Class 32, “ENERGY DRINK”
disclaimed, as to be likely to cause confusion, mistake or
deception.2
When the refusal was made final, applicant appealed
and briefs have been filed. We affirm the refusal to
register.
Likelihood of Confusion
Our determination of the issue of likelihood of
confusion is based on an analysis of all of the probative

attorney noted in his brief that “[a]pplicant has attempted to
amend the identification of goods in its brief to ‘malt liquor’
without requesting that the application be remanded for
consideration of the amendment by the examining attorney,” he did
not address his requirement for a more definite identification of
goods made final during prosecution and only addressed the
refusal under Section 2(d). See In re Broyhill Furniture
Industries Inc., 60 USPQ2d 1511, 1512 n.2 (TTAB 2001) (one ground
for refusal was requirement for translation of mark; because
applicant offered translation in appeal brief and examining
attorney did not address the issue in his brief, Board treated
requirement as moot). Accordingly, the requirement for an
acceptable identification of goods is deemed satisfied, and the
appeal on this issue is moot. The remaining refusal is
considered based on the goods as amended.

2 Registration No. 2883481, issued September 14, 2004.

Serial No. 78711050
3
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). 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).
In comparing the marks, we must determine whether they
are sufficiently similar that there is a likelihood of
confusion as to source and, in doing so, we must consider
the recollection of the average purchaser who normally
retains a general, rather than specific, impression of
trademarks. Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975). We find the marks to be similar when
compared in their entireties in terms of appearance, sound,
connotation and commercial impression.
The dominant element in registrant’s mark is the
phrase PIT BULL inasmuch as the words ENERGY DRINK are the
generic term for the goods and are disclaimed. See In re
J.M. Originals Inc., 6 USPQ2d 1393 (TTAB 1987) (JM
ORIGINALS with ORIGINALS disclaimed confusingly similar to
JM COLLECTABLES). While it is correct that we must view
Serial No. 78711050
4
the mark in its entirety, Kangol Ltd. v. KangaROOS U.S.A.
Inc., 974 F.2d 161, 23 USPQ2d 1945 (Fed. Cir. 1992), it is
also well settled that “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 re National Data Corp., 753 F.2d 1056,
1058, 224 USPQ 749, 750-51. Applicant’s mark PIT BULL is
identical in sound, appearance, meaning and commercial
impression to the dominant part of registrant’s mark PIT
BULL ENERGY DRINK. Thus, the factor of the similarity of
the marks weighs in favor of likelihood of confusion.
We now consider the goods, the channels of trade and
the class of purchasers. In making our determination, we
must consider the cited registrant’s and applicant’s goods
as they are described in the registration and application,
and we cannot read limitations into those goods. See
Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261,
62 USPQ2d 1001 (Fed. Cir. 2002); and Octocom Systems Inc.
v. Houston Computer Services Inc., 918 F.2d 937, 16 USPQ2d
1783 (Fed. Cir. 1987). If the cited registration and
application describe goods broadly, and there is no
limitation as to the nature, type, channels of trade or
Serial No. 78711050
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class of purchasers, it is presumed that the registration
and application encompass all goods of the type described,
that they move in all channels of trade normal for these
goods, and that they are available to all classes of
purchasers for the described goods. See In re Linkvest
S.A., 24 USPQ2d 1716 (TTAB 1992).
In support of his argument that the goods are related,
the examining attorney submitted evidence in the form of
third-party use-based registrations to show that other
entities have adopted a single mark for applicant’s “malt
liquor” and registrant’s “non-alcoholic energy drink.”
See, e.g., Reg. No. 2961071 (PIMPJUICE for, inter alia,
non-alcoholic energy drinks and malt liquor) and Reg. No.
2953509 (LET IT LOOSE for, inter alia, non-alcoholic energy
drinks and malt liquor) both owned by Fillmore Street
Brewery. See also Reg. No. 2854612 (HAWAIIAN SPLASH for,
inter alia, energy sports drinks and beer). In re Albert
Trostel & Sons Co., 29 USPQ2d 1783 (TTAB 1993).
The record also includes articles retrieved from the
Lexis database and printouts of web pages retrieved from
the Internet that evidence an overlap in the channels of
trade for energy drinks and alcoholic drinks, and the
creation of new drinks that combine alcohol with either
sodas or energy drinks. For example, Anheuser-Busch, known
Serial No. 78711050
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for various alcoholic drinks, also distributes energy
drinks produced by it and other companies. See
www.anheuser-busch.com (“Hansen Natural Corporation and
Anheuser-Busch Inc. today announced they have concluded
agreements following which certain Anheuser-Busch
wholesalers will become distributors of Hansen’s Monster
Energy and Lost Energy drinks ... Monster, Lost and Rumba
are currently distributed by Hansen in the United States
through a network of beer and liquor distributors and soft
drink bottlers.”); and www.hansens.com (“‘We pride
ourselves on innovation and will not limit ourselves to
malt beverages in offering exciting new products for our
wholesalers and consumers,’ said Anheuser-Busch Inc.
President August A. Busch IV. ‘We recognized the potential
of this category when we launched our own energy drink,
180, in 2001. These agreements bring value to Anheuser-
Busch, Hansen, our wholesalers and our retailers. They
allow us to expand our business in this thriving category
through our world-class network of wholesalers.’”) See
also St. Cloud Times (Minnesota) January 1, 2006 retrieved
from www.lexis.com (“The center is the sole distribution
site for the brewery products, which include the Gluek and
Stite beers and more than 60 varieties of energy drinks.”);
Market Wire Inc. July 19, 2005 retrieved from www.lexis.com
Serial No. 78711050
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(“Dick Pearce, the company’s President and CEO, said, ‘It
has been our experience that overall the beer distributors
are the best path to market for our energy drinks. They
have their products in virtually every potential outlet,
whether it is bars, night clubs, restaurants, convenience
stores, grocery you name it.”)
The record also shows that in some cases, energy
drinks are placed near alcoholic beverages and the
advertising and packaging of energy drinks mimics that of
alcoholic drinks. See, e.g., Pasadena Star-News June 3,
2006 retrieved from www.lexis.com (“A recent proliferation
for sweet-tasting, often carbonated drinks laced with
alcohol, which critics dub “alcopops,” was the subject of a
state Senate committee hearing Friday in Santa Fe Springs
... She noted, for example, the growing practice of placing
non-alcoholic energy drinks near the beer and wine cooler
racks in stores. Some energy drinks labels are even
designed to look like alcoholic drinks, Brown Taylor
said.”); and www.bevnet.com (“Sugar Free Pit Bull ... Same
great flavor as the smaller version, but packaged in a 16-
ounce can. The can has a design that reminds us of some of
the retro-beers that are once again getting mainstream
attention.”)
Serial No. 78711050
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In addition, the products themselves are also marketed
as a combined drink. See e.g., The Idaho Statesman March
22, 2006 retrieved from www.lexis.com (“Still, energy
drinks are the rage, and everything from soda to beer and
alcohol companies are getting into the act. Anheuser-Busch
makes B-to-the E energy beer, a spiced beer that contains
caffeine, guarana and ginseng. Zygo Energy Vodka is
boosted with taurine, guarana, D-ribose and yerba matta.”);
and Modern Brewery Age August 23, 2000 retrieved from
www.findarticles.com (“Gluek Brewing Co. of Cold Spring,
MN, has produced a product described as the world’s first
hard energy malt beverage. It’s an alcoholic version of an
energy drink targeting the 20’s and early 30’s crowd who
want to get a buzz on without losing their energy.”)
Finally, inasmuch as there are no limitations in the
identification of goods, we must presume that the goods
will be offered in some of the same channels of trade and
will be used by some of the same purchasers. See Canadian
Imperial Bank v. Wells Fargo Bank, 811 F.2d 1490, 1 USPQ2d
1813 (Fed. Cir. 1987).
Reviewing the record as a whole, we find the evidence
taken together to be sufficiently persuasive to support a
finding that the goods are related and that the channels of
trade and class of purchasers overlap to such an extent
Serial No. 78711050
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that when used in connection with a highly similar mark
would likely cause confusion. In particular, here, where
the marketing of registrant’s type of goods, energy drinks,
seems to parallel applicant’s goods (presented in similar
packaging, sold in the same venues, produced as a combined
energy/alcohol drink).
In view of the above, the du Pont factors of the
similarity of the goods, the channels of trade, and class
of purchasers favor a determination of likelihood of
confusion as to the mark in the cited registration.
With regard to the conditions of sale, these goods
include general consumer items that would not be purchased
with a great deal of care or require purchaser
sophistication.
In conclusion, we find that because the marks are
highly similar, the goods are related, and the channels of
trade and purchasers overlap, confusion is likely between
applicant’s mark and the mark in the cited registration.
To the extent there are any doubts, we resolve them, as we
must, in favor of the registrant. In re Hyper Shoppes
(Ohio), Inc., 837 F.2d 840, 6 USPQ2d 1025 (Fed. Cir. 1988).
Decision: The refusal to register under Section
2(d) of the Trademark Act is affirmed.