Sugarlands Distilling Company, LLC

Trademark Trial and Appeal Board

Nov 20, 2015

No. 85818277 (T.T.A.B. Nov. 20, 2015)

This Opinion is not a
Precedent of the TTAB

Mailed: November 20, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Sugarlands Distilling Company, LLC
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Serial No. 85818277
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Mark S. Graham of The Graham Law Firm, PLLC,
for Sugarlands Distilling Company, LLC.
Theodore McBride, Trademark Examining Attorney, Law Office 103,
Michael Hamilton, Managing Attorney.
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Before Kuhlke, Wellington and Goodman,
Administrative Trademark Judges.

Opinion by Kuhlke, Administrative Trademark Judge:
Sugarlands Distilling Company, LLC (“Applicant”) seeks registration on the
Principal Register of the mark SUGARLANDS DISTILLING COMPANY (in
standard characters, DISTILLING COMPANY disclaimed) for the following goods
ultimately identified as “craft moonshine beverages,” in International Class 33.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(e)(2) of the Trademark Act, 15 U.S.C. § 1052(e)(2), on the ground

1 Application Serial No. 85818277 was filed on January 8, 2013, based upon Applicant’s
allegation of a bona fide intent to use the mark in commerce under Section 1(b) of the
Trademark Act.
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that Applicant’s mark is primarily geographically descriptive of its goods. In
addition, 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, when
used in connection with the identified goods, so resembles the mark SUGARLAND
CELLARS (in standard characters, CELLARS disclaimed) registered on the
Principal Register for “wines” in International Class 33,2 as to be likely to cause
confusion, mistake or deception.
When the refusals were made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We reverse the refusal under Section
2(e)(2) and affirm the refusal under Section 2(d).
Primarily Geographically Descriptive
“In order for a mark to be considered primarily geographically descriptive under
Section 2(e)(2), it must be shown that (1) the mark’s primary significance is a
generally known geographic location; and (2) that the relevant public would be
likely to make a goods/place association, that is, would be likely to believe that the
goods originate in the place named in the mark.” In re Spirits of New Merced LLC,
85 USPQ2d 1614, 1616 (TTAB 2007). See also In re Societe Generale des Eaux
Minerals de Vittel S.A., 824 F.2d 957, 3 USPQ2d 1450 (Fed. Cir. 1987); In re
Brouwerij Nacional Balashi NV, 80 USPQ2d 1820, 1821 (TTAB 2006); In re JT
Tobacconists, 59 USPQ2d 1080 (TTAB 2001); and TMEP 1210.01(a) (October 2015)

2 Registration No. 4226505, issued on October 16, 2012.

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(“To establish a prima facie case for refusal to register a mark as primarily
geographically descriptive, the examining attorney must show that: (1) the primary
significance of the mark is a generally known geographic location, (2) the goods or
services originate in the place identified in the mark; and (3) purchasers would be
likely to believe that the goods or services originate in the geographic place
identified in the mark.”)
The Examining Attorney argues that “[t]he evidence of record shows that
SUGARLANDS is a valley in the north-central Great Smoky Mountains. It is also
the location of a national park which features the ‘Sugarlands Visitor Center.’ Given
these facts, the geographic location SUGARLANDS, while remote and obscure
enough to conduct moonshining during the turn of the century, is not a location that
is now so remote and obscure that consumers wouldn’t recognize it as a geographic
location.” 14 TTABVUE 13. The Examining Attorney further argues that “[t]here is
a good[s]/place association between SUGARLANDS and Applicant’s goods by virtue
of the fact that Applicant’s goods originate from the SUGARLANDS area (Knoxville
TN is roughly 25 miles from the SUGARLANDS area).” 14 TTABVUE 14. In
support of the refusal the Examining Attorney submitted a single Wikipedia entry
for “The Sugarlands.” The entry describes the Sugarlands as:
[A] valley in the north-central Great Smoky Mountains,
located in the Southeastern United States. Formerly
home to a string of small Appalachian communities, the
valley is now the location of the Great Smoky Mountains
National Park headquarters and the Sugarlands Visitor
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Center. Lying just south of Gatlinburg, the Sugarlands is
one of the park’s most popular access points.3
The excerpt from Wikipedia also comments on the association of moonshining in
the area:
By 1900, moonshining had become rampant throughout
the Smokies. The dense forest, isolated coves, and ready
availability of corn made mountain valleys such as the
Sugarlands the perfect places to hide and operate illegal
stills. … While moonshining no doubt occurred, Kephart’s
account is probably exaggerated. Gladys Trentham
Russell, who grew up in the Fighting Creek area,
estimated that less than 20% of mountain families ever
engaged in the practice. Those who consumed moonshine
often did so for medicinal purposes. Russell did
acknowledge, however, that ‘bootleggers’ and ‘bad men’
made the far reaches of the Sugarlands too dangerous for
women and children.4
We begin by finding that the relevant purchasing public for the goods at issue
consists of the general public interested in purchasing distilled spirits, including
whiskey.
With regard to the primary significance of the term “SUGARLANDS,” we find
that the record does not support a finding that it is a generally known geographic
location. The evidence consists solely of an excerpt from one Wikipedia entry. While
the Wikipedia excerpt has probative value, without other evidence to support the
proposition that consumers have been exposed to this term and are aware of its
geographic significance, we cannot find that it is a generally known geographic
location. In re Newbridge Cutlery Co., 776 F.3d 854, 113 USPQ2d 1445, 1450-51

3 April 24, 2013 Office action, TSDR p. 4.
4 April 24, 2013 Office action, TSDR p. 6.
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(Fed. Cir. 2015) (“The internet (and websites such as Wikipedia) contains enormous
amounts of information: some of it is generally known, and some of it is not. …
[T]he mere entry in a gazetteer or the fact that a location is described on the
internet does not necessarily evidence that a place is known generally to the
relevant public.”); See also In re IP Carrier Consulting Grp., 84 USPQ2d 1028, 1032-
33 (TTAB 2007) (“The better practice with respect to Wikipedia evidence is to
corroborate the information with other reliable sources, including Wikipedia’s
sources.”). The facts of this case are distinct from those presented in In re New
Merced, 85 USPQ2d 1614 (TTAB 2007) wherein the evidence of record, consisting of
entries from multiple websites and reference works, established that Yosemite is
the name of a well-known geographic region that is clearly not obscure or remote.
Inasmuch as the evidence does not support the first factor, we need not address
the goods/place association.5 In view thereof, we find on this record that
SUGARLANDS is not primarily geographically descriptive of Applicant’s goods.
Likelihood of Confusion
When the question is likelihood of confusion, we analyze the facts as they relate
to the relevant factors set out in In re E. I. du Pont de Nemours & Co., 476 F.2d
1357, 177 USPQ 563, 567 (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

5 However, we note that the historical reference associating this location with
“moonshining” dates back to 1900 and by itself is not sufficiently probative of current
consumers’ awareness of this connection.
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similarities between the goods or services. See Federated Foods, Inc. v. Fort Howard
Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976).
Similarity of the Goods/Channels of Trade/Consumers
With regard to the goods, channels of trade and classes of consumers, we must
make our determinations under these factors based on the goods as they are
identified in the registration and application. See In re Dixie Restaurants Inc., 105
F.3d 1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997). See also Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001
(Fed. Cir. 2002); and Octocom Systems, Inc. v. Houston Computers Services Inc., 918
F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Applicant argues the goods are not related and specifically asserts:
It has not been shown that the relevant consumers of
craft moonshine beverages sold under the mark
SUGARLAND DISTILLERY would have any reasonable
experiential basis to confuse the source of such goods with
that of wine sold under the mark SUGARLAND
CELLARS; in fact, ordinary common sense shows that
people would readily recognize from the marks
themselves that they come from commercially unrelated
sources.
12 TTABVUE 4.
However, the record supports a finding that Applicant’s goods “craft moonshine
beverages” are sufficiently related to Registrant’s “wine,” that when used under a
very similar mark, confusion is likely. We begin by sorting out the nature of
Applicant’s goods. Applicant’s initial identification for the goods was “alcoholic
beverages and spirits.” In response to a requirement issued by the Examining
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Attorney, Applicant initially amended its identification of goods to “distilled spirits
and alcoholic beverages containing distilled spirits,” but later further refined its
identification to “craft moonshine beverages.” “Moonshine” is defined as “smuggled
or illicitly distilled liquor, especially corn liquor as illicitly distilled chiefly in rural
areas of the southern U.S.”6 and “intoxicating liquor; esp: illegally distilled corn
whiskey.”7 “Corn whiskey” is defined as “whiskey made from a mash having at least
80 percent corn.”8 By contrast, “bourbon” is defined as “a whiskey distilled from a
mash made up of not less than 51 percent corn plus malt and rye,”9 and “rye
whiskey” is defined as “a whiskey distilled from rye or from rye and malt.”10
Applicant’s goods presumably are not “smuggled” or “illegally distilled,” we
therefore interpret this identification as meaning whiskey, including corn whiskey
that is made from 80 percent corn mash.11

6 Dictionary.com (www.dictionary.reference.com) based on the RANDOM HOUSE
DICTIONARY (2015). 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 (TTAB 1982), aff'd, 703
F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983), including online dictionaries that exist in
printed format or regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377
(TTAB 2006).
7 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1998). Univ. of Notre Dame du
Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594.
8 Dictionary.com (www.dictionary.reference.com) based on RANDOM HOUSE DICTIONARY
(2015). In re Red Bull GmbH, 78 USPQ2d at 1377.
9 MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1998). Univ. of Notre Dame du
Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594.
10 Id.
11 The definition does not definitively exclude other types of whiskey and we note the record
shows Applicant produces rye spirits and bourbon. See November 3, 2014 Response, TSDR
p. 3 (newspaper report of awards given to Applicant in the flavored whiskey and bourbon
category for its rye spirits).
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Applicant is correct in its observation that there is no per se rule that all
alcoholic beverages are related; rather, we look to the record to make that
determination.12 Here, the record contains several examples of wineries also
distilling and selling various spirits, including whiskey. Moreover, many of them
make this clear by including both the words “winery” and “distillery” in their
trademarks/trade names. For example, Montezuma Winery, in addition to wine,
also produces and sells vodka, brandy and whiskey;13 Warwick Valley Winery &
Distillery offers wine, distilled spirits, and distilling classes for those “wanting to
learn about distilling and the craft industry … and all aspects of brandy, gin and
whiskey production”;14 Cedar Ridge Winery & Distillery produces and sells wine

12 We note, however, that the Court of Appeals for the Federal Circuit and the Board have
repeatedly held various alcoholic beverages, including whiskey and wine to be related. See,
e.g., In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1947-8 (Fed. Cir. 2004)
(“Indeed, the goods [tequila and beer or ale] often emanate from the same source because
‘both are alcoholic beverages that are marketed in many of the same channels of trade to
many of the same consumers.’”) (quoting Majestic Distilling, 65 USPQ2d at 1204 (finding
malt liquor related to tequila given the identity of trade channels despite the fact that “malt
liquor is a brewed product, whereas tequila is distilled”)); In re Salierbrau Franz Sailer, 23
USPQ2d 1719, 1720 (TTAB 1992) (beer and wine related); Monarch Wine Co., Inc. v. Hood
River Distillers, Inc., 196 USPQ 855 (TTAB 1977) (whiskey related to wine); In re AGE
Bodegas Unidas, S.A., 192 USPQ 855 (wine related to whiskey); Ex Parte American Wine
Company, 90 USPQ 14, 15 (Comm’r Pat. 1951) (wine related to whiskey). As specifically
addressed in Monarch Wine Co., “[T]he products of both parties are alcoholic beverages
which flow through the same channels of trade to the same class of purchasers, and we
believe that a prospective purchaser of an alcoholic beverage upon entering and browsing
through the various alcoholic products located or displayed on the various shelves or
counters in retail liquor establishments would, upon encountering a whiskey, rum, brandy
or vodka identified by the term “MONARCH”, and then continuing on his jaunt to another
counter or section of the same store and seeing a wine or champagne sold under the
identical mark “MONARCH”, be likely to believe that both products originated with the
same producer.” Monarch Wine Co., Inc. v. Hood River Distillers, Inc., 196 USPQ at 857.
13 February 3, 2014, TSDR p. 5.
14 Id. p. 11-13.
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and “Griff’s Cowboy Whiskey”;15 Nashoba Valley Winery produces and sells wine
and single malt whiskey;16 and Charbay Distillery & Winery produces and sells
wine and “small-batch whiskey.”17 The Internet evidence shows that there are a
number of combination wineries and distilleries, and/or companies that produce
both wine and spirits, including whiskey, and that these companies are located
throughout the country, including New York, Iowa, Massachusetts and California.
This evidence is sufficient for us to find that the goods are related.
Moreover, because there are no limitations or restrictions as to trade channels or
classes of purchasers in the respective identifications of goods, we presume that the
goods are or would be marketed in all normal trade channels for such goods and to
all normal classes of purchasers of such goods. See Packard Press Inc. v. Hewlett-
Packard Co., 227 F.3d 1352, 56 USPQ2d 1351, 1357 (Fed. Cir. 2000). The trade
channels for both Applicant’s and Registrant’s goods would include liquor stores,
bars and restaurants, and the alcoholic beverages sections of retail outlets. The
relevant class of consumers for both goods includes connoisseurs as well as ordinary
consumers who consume alcoholic beverages. See Somerset Distilling, Inc. v
Speymalt Whiskey Distribs. Ltd., 14 USPQ2d 1539, 1542 (TTAB 1989). The evidence
reveals another trade channel, i.e., on site at the winery/distillery. Based on this
evidence, we find that whiskey, including craft whiskey, and wine travel in the
same channels of trade and are offered to the same classes of consumers.

15 Id. p. 14.
16 Id. p. 18.
17 Id. p. 23.
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In view of the above, these du Pont factors weigh in favor of a likelihood of
confusion.
Similarity of the Marks
We consider the marks SUGARLANDS DISTILLING COMPANY and
SUGARLAND CELLARS and compare them “in their entireties as to appearance,
sound, connotation and commercial impression.” Palm Bay Imports 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). In making our determination
we focus on the recollection of the average purchaser who normally retains a
general rather than specific impression of the trademarks. In re Cynosure, Inc., 90
USPQ2d 1644, 1645 (TTAB 2009); Sealed Air Corp. v. Scott Paper Co., 190 USPQ
106, 108 (TTAB 1975). See also Palm Bay Imports Inc. v. Veuve Clicquot Ponsardin,
73 USPQ2d at 1695 (“[G]eneral consumers, not just connoisseurs, occasionally
purchase champagne or sparkling wines on celebratory occasions, with little care or
prior knowledge”).
The Examining Attorney finds the marks confusingly similar because the
common element, SUGARLAND(S), is the dominant portion of both marks, as the
additional wording in each mark, DISTILLING COMPANY and CELLARS, is
merely descriptive and disclaimed. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ
749, 751 (Fed. Cir. 1985) (“[I]n articulating reasons for reaching a conclusion on the
issue of confusion, 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
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ultimate conclusion rests on consideration of the marks in their entireties.”). See
also Dixie Rests., Inc., 41 USPQ2d at 1533-34. In addition, the Examining Attorney
notes that marks in plural and singular form are essentially identical. Weider
Publ’ns, LLC v. D & D Beauty Care Co., 109 USPQ2d 1347, 1355 (TTAB 2014).
Applicant argues that confusion is not possible because the respective products
“cannot even be lawfully sold to the general public under the same roof” and “they
are branded under distinguishable marks that explicitly say the products come from
fundamentally different types of enterprises.” 12 TTABVUE 3.
With regard to Applicant’s first point, there is no evidence of record to support
the statement that such goods may not be sold under the same roof, and as
discussed above, the normal trade channels for wine and whiskey include liquor
stores. In addition, as discussed above, the evidence of record shows wine and
whiskey sold at the same venue. While it is not clear that the tasting rooms and
stores for wine and whiskey are in the same building on the property, the products
are emanating from the same source at the same location.
On the second point, the record includes examples of wineries being referenced
as producers of distilled spirits or include in their name both words winery and
distillery. Thus, the wording DISTILLING COMPANY and CELLARS does not
indicate they are from “fundamentally different types of enterprises” such that they
distinguish source.
Viewing the marks SUGARLANDS DISTILLING COMPANY and SUGARLAND
CELLARS we find that the similarities outweigh the dissimilarities. The marks
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begin with the common element which adds to the prominence of that term in both
marks. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
1772, 73 USPQ2d at 1692; Presto Prods., Inc. v Nice-Pak Prods., Inc., 9 USPQ2d
1895, 1897 (TTAB 1988). The additional wording is merely descriptive and lacks
source-identifying significance. That the wording DISTILLING COMPANY may
indicate to the consumer that the goods are spirits does not eliminate likely
confusion in a marketplace where wineries are producing distilled spirits. Moreover,
in view of our finding above, the record does not support a finding that the term
SUGARLAND is weak. While it is possible there may be some consumers in the
United States that have heard of the SUGARLANDS and its connection with
“moonshine,” it could still be connected by those consumers with Registrant’s mark
SUGARLAND also located in Tennessee.
In view thereof, this du Pont factor weighs in favor of finding a likelihood of
confusion.
Balancing of Factors
In conclusion, because the marks are similar, the goods are related and the
channels of trade and consumers overlap, we find that confusion is likely between
Applicant’s mark SUGARLANDS DISTILLING COMPANY and SUGARLAND
CELLARS in the cited registration.
Decision: The refusal to register under Section 2(e)(2) is reversed. The refusal
to register under Section 2(d) is affirmed.