The Bruery, LLC

Trademark Trial and Appeal Board

Sep 24, 2014

No. 85656671 (T.T.A.B. Sep. 24, 2014)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 24, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
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The Bruery, LLC
_____

Serial No. 85656671
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Arash Samadani of Samadani Law, APC
for The Bruery, LLC.
Natalie Polzer, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
_____

Before Quinn, Wolfson and Lykos,
Administrative Trademark Judges.

Opinion by Lykos, Administrative Trademark Judge:
The Bruery, LLC (“Applicant”) seeks to register the mark 5 GOLDEN RINGS
(in standard character format) on the Principal Register for “Beer; Malt liquor” in
International Class 32.1

1 Application Serial No. 85656671, filed June 20, 2012 pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b). Concurrent with the instant appeal, Applicant
amended its filing basis to Trademark Act Section 1(a), 15 U.S.C. § 1051(a), and filed an
acceptable allegation of use.

Serial No. 85656671
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Applicant has appealed the Trademark Examining Attorney’s final refusal to
register the mark under Section 2(d) of the Trademark Act of 1946, 15 U.S.C.
§ 1052(d), on the ground that Applicant’s applied-for mark so resembles the
following two registered marks owned by Round Hill Cellars (“Registrant”) that,
when used on or in connection with Applicant’s identified goods, it is likely to cause
confusion or mistake or to deceive:
● Registration No. 3855037 for the mark GOLD RING on the Principal
Register in standard character format for “wines” in International Class 33;2 and

● Registration No. 4066541 for the mark GOLD RING VINEYARDS and
design (displayed below) on the Principal Register for “Alcoholic beverages
except beer” in International Class 33, with VINEYARDS disclaimed. The
description of the mark is as follows: “The mark consists of a circle within which
are rays emanating from a smaller circle, beneath which are the stylized words
"GOLD RING VINEYARDS" appearing perpendicular to the circle design.”3

For the reasons explained below, we affirm the refusal to register.
I. Evidentiary Objection
Before addressing the substance of this appeal, we will consider first the
Examining Attorney’s objection to Applicant’s submission of the entry for “The

2 Registered September 28, 2010, alleging July 30, 2010 as the date of first use anywhere
and in commerce.
3 Registered December 6, 2011, alleging July 30, 2010 as the date of first use anywhere and
in commerce. Color is not claimed as a feature of the mark.
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Twelve Days of Christmas” obtained from the online resource Wikipedia with its
appeal brief as untimely. Trademark Rule 2.142(d) provides in relevant part that
“[t]he record in the application should be complete prior to the filing of an appeal.
The Trademark Trial and Appeal Board will ordinarily not consider additional
evidence filed with the Board by the appellant or by the examiner after the appeal
is filed.” Insofar as the Examining Attorney has timely interposed an objection to
Applicant’s late-filed evidence with her brief, the objection is sustained, and the
evidence submitted concurrently with Applicant’s appeal brief has been given no
consideration. See e.g., In re Fiat Group Marketing & Corporate Communications
S.p.A., 109 USPQ2d 1593, 1596 (TTAB 2014) (examining attorney’s objection to
applicant’s submission of registrations with appeal brief sustained).4
II. Section 2(d) Refusal
We now consider the substantive refusal before us focusing on Registration No.
3855037 for the standard character mark GOLD RING for “wine.” This is because
when that mark is considered vis-à-vis the applied-for mark 5 GOLDEN RINGS
for “Beer; Malt liquor,” it is that mark that is most likely to support a finding of
likelihood of confusion. In other words, if confusion is likely between these marks,
there is no need for us to consider the likelihood of confusion with Registration No.
4066541 for the mark GOLD RING VINEYARDS and design, and if there is no

4 The Board does not take judicial notice of entries from Wikipedia. To do so would deprive
the nonoffering party of the opportunity to rebut the evidence by submitting other evidence
that may call into question the accuracy of the particular Wikipedia entry. Cf. In re Cook
Medical Technologies LLC, 105 USPQ2d 1377, 1382 n.2 (TTAB 2012) (evidence obtained
from Wikipedia considered because examining attorney had opportunity to rebut the
evidence).
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likelihood of confusion between Applicant's mark and the registered mark GOLD
RING, then there would be no likelihood of confusion with Registrant’s other cited
registration. See, e.g., In re Max Capital Group Ltd., 93 USPQ2d 1243, 1245 (TTAB
2010).
We base our determination under Section 2(d) on an analysis of all of the
probative evidence of record bearing on a likelihood of confusion. In re E. I. du Pont
de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“du Pont”). See
also, In re Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203
(Fed. Cir. 2003). In any likelihood of confusion analysis, however, two key
considerations are the similarities between the marks and the similarities between
the goods and/or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976). These factors and the other relevant du Pont
factors are discussed below.
A. Comparison of the Marks
We consider the first du Pont likelihood of confusion factor regarding the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression. See Palm Bay Imports, Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed.
Cir. 2005). “The 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
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F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). Our analysis cannot be
predicated on dissection of Applicant’s and Registrant’s marks. In re National Data
Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985). Rather, we are obliged to
consider each mark in its entirety. Id. See also Franklin Mint Corp. v. Master Mfg.
Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981) (“It is axiomatic that a mark
should not be dissected and considered piecemeal; rather, it must be considered as a
whole in determining likelihood of confusion”). However, there is nothing improper
in stating that, for rational reasons, more or less weight has been given to a
particular feature of a mark, provided the ultimate conclusion rests on a
consideration of the marks in their entireties. In re National Data Corp., 224 USPQ
at 751.
Applicant devotes much of its appeal brief arguing because the phrase “five
golden rings” is “so intrinsically associated with Christmas that it is difficult to read
it without elongating vowels” (Applicant’s Brief, p. 1), it engenders an entirely
different commercial impression from the cited mark. As Applicant maintains, the
Examining Attorney “ignores the starkly different commercial impression of 5
GOLDEN RINGS – a reference to a classic Christmas song, and that of GOLD
RING … – presumably a reference to luxury, exclusivity and/or excellence.” Id. at 3.
In addition, Applicant argues that the Examining Attorney has improperly
dissected the mark by failing to consider the number “5,” the first element of
Applicant’s mark.
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Applicant’s arguments are unconvincing and unsupported by the record. During
ex parte prosecution, Applicant submitted no evidence to support its position.
Moreover, as noted above, Applicant’s submission of evidence with its brief is
untimely and has not been considered.
Applicant’s and Registrant’s marks are comprised, either in whole or in part, of
the word “gold” or a variation thereof – “golden” - and the word “ring” or plural
thereof – “rings.” Grammatically, the words “golden” and “gold” as they appear in
Applicant’s and Registrant’s marks function as adjectives modifying the noun “ring”
or “rings.” See entries for “gold” and “golden” from Ransom House Unabridged
Dictionary (1997) at dictionary.infoplease.com, Attorney’s Final Office Action dated
May 2, 2013. As such, the literal portions of each mark are similar not only in sound
and appearance but also in connotation and meaning. When we consider the marks
as a whole, the addition of the number “5” to Applicant’s mark, and plural version of
“rings” are insufficient to outweigh these similarities.
For the foregoing reasons, we agree with the Examining Attorney that
Applicant’s and Registrant’s marks are similar in appearance, sound, connotation
and commercial impression. This first du Pont factor weighs in favor of finding a
likelihood of confusion.
B. The Goods
Next we compare Applicant’s and Registrant’s respective goods as they are
identified in the application and the cited registration. See Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir.
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2014); Octocom Systems, Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990). See also, Hewlett-Packard Co. v. Packard
Press Inc., 281 F.3d 1261, 62 USPQ2d 1001 (Fed. Cir. 2002). Applicant argues that
the goods while “somewhat related in the minds of consumers” would not be easily
confused because Applicant is a craft brewery selling beer and malt liquor whereas
Registrant sells wine and other alcoholic beverages excluding beer. Applicant’s
Brief, p. 5.
Applicant’s argument reflects a misunderstanding of the second du Pont factor
analysis. The respective goods need only be “related in some manner and/or if the
circumstances surrounding their marketing [be] such that they could give rise to the
mistaken belief that [the goods and/or services] emanate from the same source.”
Coach Servs., Inc., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83
USPQ2d 1715, 1724 (TTAB 2007)). See also On-line Careline Inc. v. America Online
Inc., 229 F.3d 1080, 56 USPQ2d 1471 (Fed. Cir. 2000); In re Martin’s Famous Pastry
Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289 (Fed. Cir. 1984). The issue here is not
whether purchasers would confuse the goods, but rather whether there is a
likelihood of confusion as to the source of these goods. L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1439 (TTAB 2012); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). In
addition, while Applicant contends that its products are limited to craft beer, this is
not reflected in the identification which broadly delineates Applicant’s goods as
“beer” and “malt liquor.”
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To show that the involved goods are related, the Examining Attorney submitted
numerous copies of use-based third-party registrations showing that the same
entity has registered a single mark for identifying both “beer,” as identified in the
application, and “wine” or “wines” as identified in the cited registration. These
include, among others, Registrations Nos. 3099373, 3875505, 3934483, 3962914,
3975642, 3994422, 4136155, and 4220113. See May 2, 2013 Final Office Action.
Copies of use-based, third-party registrations may serve to suggest that the goods
are of a type which may emanate from a single source. In re Albert Trostel & Sons
Co., 29 USPQ2d 1783, 1785 (TTAB 1993).
The Examining Attorney also submitted Internet evidence showing numerous
third parties producing and offering for sale beer and/or malt liquor and wine. Note
the following examples:
● Excerpt from http://thevillagevinter.com showing hand-crafted wine, beer and
malt liquors offered under the same name VILLAGE VINTNER.

● Excerpt from www.schillingbridgewinery.com showing beer and wine offered
under the same name SCHILLINGBRIDGE.

● Excerpt from www.hometowncellars.com showing the same entity, Hometown
Cellars, producing both craft beer and wine.

See May 2, 2013 Final Office Action. As the aforementioned evidence demonstrates,
it is not uncommon for craft/microbreweries to also produce wine, and sometimes
under the same house mark. This constitutes further evidence that consumers may
expect to find both Applicant’s and Registrant’s goods as identified in the involved
application and cited registration GOLD RING as emanating from a common
Serial No. 85656671
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source, and as such, the goods are closely related. Thus, the second du Pont factor
also weighs in favor of finding a likelihood of confusion.
C. Trade Channels
Next we consider established, likely-to-continue channels of trade, the third du
Pont factor. Because the identifications in the application and registration for the
mark GOLD RING have no restrictions on channels of trade, we must presume
that the goods travel in all channels of trade appropriate for such goods, which the
record shows include liquor stores and online retailers. See In re Viterra Inc., 671
F.3d 1358, 1362, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (quoting Hewlett-Packard
Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62 USPQ2d 1001, 1005 (Fed. Cir.
2002)). See also October 11, 2012 Office Action excerpt from “Spec’s Texas
Superstore” at www.specsonline.com. and May 2, 2013 Final Office Action excerpt
from Goody Goody Liquor’s Inc. at www.goodygoody.com. As such, the third du Pont
factor regarding the similarity or dissimilarity of established, likely to continue
trade channels also favors a finding of likelihood of confusion.
D. Conditions of Purchase
We now turn to the fourth du Pont factor, the conditions under which and buyers
to whom sales are made, i.e., “impulse” vs. careful, sophisticated purchasing.
Applicant contends that fine wines and craft beers “are rarely impulse purchases”
and that the consumers of such items are highly educated, and therefore able to
discern different brand names. Applicant’s Brief, p. 5.
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While some of the prospective consumers of Applicant’s and Registrant’s goods
may indeed be highly educated and relatively knowledgeable about and exercise
some degree of care in their purchasing decisions, this does not mean that all
customers for the goods as identified in the application and cited registration are
knowledgeable and careful. Because these items, as identified, may be inexpensive
and purchased by the public at large, we must assume that the purchasers include
casual consumers purchasing relatively inexpensive items. Indeed, the record shows
bottles of wine and six-packs of beer offered for sale for less than $10.00. See
October 11, 2012 Office Action “Spec’s Texas Superstore” as advertised at
www.specsonline.com. That being said, even assuming that the prospective
purchasers are sophisticated and knowledgeable about alcoholic beverages it does
not necessarily mean that they are sophisticated or knowledgeable in the field of
trademarks or immune from source confusion. See, e.g., Stone Lion Capital
Partners, 110 USPQ2d at 1163. This fourth du Pont factor is therefore neutral.
To the extent that there are any other relevant du Pont factors, we treat them as
neutral.
In summary we have carefully considered all of the evidence of record pertaining
to the du Pont likelihood of confusion factors, as well as Applicant’s arguments with
respect thereto. On this particular record before us, we find that the Examining
Attorney has carried the Office’s burden of showing a likelihood of confusion
between Applicant’s mark 5 GOLDEN RINGS and the mark shown in Registration
No. 3855037.
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Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.