The Keg Rights Limited Partnershipv.Keggers, L.P.

Trademark Trial and Appeal Board

Feb 1, 2013

No. 91193534 (T.T.A.B. Feb. 1, 2013)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
February 1, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

The Keg Rights Limited Partnership
v.
Keggers, L.P.
_____

Opposition No. 91193534
_____

Jennifer Lee Taylor of Morrison & Foerster LLP for The Keg Rights Limited
Partnership.

Morris E. Turek of YourTrademarkAttorney.com for Keggers, L.P.
_____

Before Kuhlke, Wellington, and Hightower, Administrative Trademark Judges.

Opinion by Hightower, Administrative Trademark Judge:

On July 29, 2009, Keggers, L.P. filed an intent-to-use application to register
the mark shown below:

Opposition 91193534

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(with DRAFT HOUSE & GRILL disclaimed) for “restaurant and bar services.”1 The
Keg Rights Limited Partnership opposes 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 applicant’s services, so resembles opposer’s previously used
and registered marks (collectively, opposer’s “KEG Marks”) as to be likely to cause
confusion. Opposer’s KEG Marks are:
• THE KEG for “tavern and night club services” in International Class 412;
• THE KEG for “restaurant and cocktail lounge services” in International
Class 423;
• THE KEG STEAKHOUSE & BAR (stylized):

(STEAKHOUSE & BAR disclaimed) for “restaurant, dining room and
lounge services” in International Class 424; and
• THE KEG STEAKHOUSE & BAR (STEAKHOUSE & BAR disclaimed) for
“restaurant, dining room and lounge services” in International Class 42.5
After filing its answer in this proceeding, applicant moved to amend its
application to “restaurant and bar services, namely, sports bar services.”6
Both parties filed trial briefs, and opposer filed a reply brief.

1 Application Serial No. 77792084.
2 Registration No. 909366, issued March 2, 1971, Sections 8 and 15 affidavits accepted and
acknowledged, renewed.
3 Registration No. 1373087, issued November 26, 1985, Sections 8 and 15 affidavits
accepted and acknowledged, renewed.
4 Registration No. 2847689, issued June 1, 2004, Sections 8 and 15 affidavits accepted and
acknowledged.
5 Registration No. 2847690, issued June 1, 2004, Sections 8 and 15 affidavits accepted and
acknowledged.
6 Opposer did not consent, and consideration of the amendment was deferred until final
decision.
Opposition 91193534

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The Record
The record comprises the pleadings and the file of the opposed application.
In addition, opposer has submitted the following evidence:
• Status and title copies of each of the four registrations listed above;
• Applicant’s responses to opposer’s first set of interrogatories and first set
of requests for admissions, and certain documents produced and
authenticated by applicant;
• Copies of 24 third-party registrations, each of which identifies both
restaurant and sports bar services;
• Internet printouts of the definitions of “keg” and “kegger” in the Oxford
English Dictionary;
• Internet printouts of the definitions of “keg,” “kegger,” and “powder keg”
in Webster’s Third New International Dictionary, Unabridged; and
• Transcript of the testimonial deposition of Neil Cameron Maclean,
executive vice president and chief financial officer of opposer’s parent
company Keg Restaurants Limited (“Maclean Tr.”), with exhibits,
including printed materials and a DVD containing television and radio
commercials for opposer’s restaurant services. The entire deposition
transcript and certain of the exhibits are designated confidential, highly
confidential, or trade secret/commercially sensitive and filed under seal.7
Opposer also submitted as rebuttal evidence 12 Internet printouts from the
websites of third parties advertising both restaurant and sports bar services.
Applicant has submitted the following additional evidence:
• A copy of opposer’s responses to applicant’s first set of interrogatories, all
of which opposer designated as commercially sensitive and thus were
submitted under seal8;

7 Relevant evidence that has been submitted under seal and not disclosed by the parties in
the unredacted portions of their public briefs will be discussed herein only in general terms.
8 Opposer asserted this designation notwithstanding the fact that most of its interrogatory
responses clearly contain no confidential information, including several in which opposer
lodged objections and provided no responsive information at all. We caution opposer
against such overuse of the “commercially sensitive” designation in future proceedings.
Opposition 91193534

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• Internet screenshots referencing 15 third parties with names
incorporating the term “keg” or “kegger” in association with restaurant
and bar services; and
• Transcript of the testimonial deposition of William C. Smith, owner of
Keggers Management, L.L.C., applicant’s general partner (“Smith Tr.”).
The Parties
Opposer operates 16 restaurants in four U.S. states (Washington, Texas,
Arizona, and Colorado). Opposer’s Brief at 6; Maclean Tr. at 13:16-24, 14:15-17. It
began offering restaurant services in the United States in association with THE
KEG mark in 1974 and under the mark THE KEG STEAKHOUSE & BAR at least
as early as 1995. Opposer’s Brief at 6; Maclean Tr. at 116:5-11. Each restaurant
has a full-service dining room and a separate bar area, typically encompassing
about one-third of the total 8,500-square-foot space. Opposer’s Brief at 6-7; Maclean
Tr. at 13:8-15, 14:24-15:12, 17:13-18:2. The bar areas offer full bar service and
music; most also have big-screen television sets usually showing sporting event
broadcasts. Opposer’s Brief at 6-7; Maclean Tr. 16:4-25.
Applicant has not yet used its mark but plans to open sports bars under the
KEGGERS DRAFT HOUSE & GRILL design mark in the Rio Grande Valley area of
Texas, specifically, McAllen, Harlingen, and Brownsville. Smith Tr. at 65:22-66:2.
Standing and Priority
Applicant does not dispute opposer’s standing or priority. Opposer’s standing
to oppose registration of applicant’s mark is established by its pleaded registrations,
which the record shows to be valid and subsisting, and owned by opposer. See, e.g.,
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
Opposition 91193534

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2000) (party’s ownership of pleaded registration establishes standing). In addition,
because opposer’s pleaded registrations are of record, priority is not an issue with
respect to the services covered by opposer’s pleaded registrations. Penguin Books
Ltd. v. Eberhard, 48 USPQ2d 1280, 1286 (TTAB 1998) (citing King Candy Co. v.
Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974)).
There is no dispute that opposer has priority vis-à-vis applicant, which filed the
involved application on an intent-to-use basis in 2009.
Likelihood of Confusion
“We determine likelihood of confusion by focusing on . . . whether the
purchasing public would mistakenly assume that the applicant’s [services] originate
from the same source as, or are associated with, the [services] in the cited
registrations.” In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203
(Fed. Cir. 2003). We consider all probative facts in evidence which are relevant to
the likelihood of confusion factors set forth in In re E.I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). Opposer must establish that
there is a likelihood of confusion by a preponderance of the evidence. Cunningham,
55 USPQ2d at 1848.
The parties have presented evidence as to the following du Pont factors:
similarity of the parties’ marks (factor 1); similarity of their services (factor 2);
similarity of trade channels and the buyers to whom sales are made (factors 3 and
4); the strength of opposer’s marks (factor 5); and the number and nature of similar
marks in use on similar goods (factor 6). We find the remaining factors to be
neutral or inapplicable.
Opposition 91193534

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A. Similarity of the Services
We first address the similarities or differences between opposer’s and
applicant’s services, the second du Pont factor. It is settled that in making our
determination regarding the relatedness of the parties’ services, we must look to the
services as identified in the application and opposer’s pleaded registrations. See
Octocom Sys., Inc. v. Houston Computer Servs., Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990). That is, because the scope of the registration applicant
seeks is defined by its application (not by its planned use), it is the application (not
its planned use) that we must look to in determining applicant’s right to register:
The authority is legion that the question of registrability
of an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which sales
of the goods are directed.
Id. It is sufficient if a likelihood of confusion is found with respect to use of
applicant’s mark on any item that comes within the description of services in the
application or registration. Tuxedo Monopoly, Inc. v. General Mills Fun Group, Inc.,
648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); Apple Computer v. TVNET.net,
Inc., 90 USPQ2d 1393, 1397 (TTAB 2007).
We will compare the narrowed services identified in applicant’s proposed
limiting amendment, that is, “restaurant and bar services, namely, sports bar
services” and the services for which opposer has registered and used its KEG
Marks: “tavern and night club services,” “restaurant and cocktail lounge services,”
and “restaurant, dining room and lounge services.”
Opposition 91193534

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“Tavern,” “cocktail lounge,” “lounge,” and “sports bar” services all are types of
bar services, and as such, are very closely related. Restaurant and bar services also
are closely related. See In re Jack B. Binion, 93 USPQ2d 1531, 1535-36 (TTAB
2009) (finding casino, gaming, hotel, and bar services closely related to restaurant
services). Moreover, opposer has made of record 21 use-based third-party
registrations identifying both restaurant and sports bar services.9 Although these
registrations are not evidence that the marks shown therein are in use or that the
public is familiar with them, they have probative value to the extent that they serve
to suggest that such services are of a type which may emanate from a single source.
See In re Davey Prods. Pty. Ltd., 92 USPQ2d 1198, 1203 (TTAB 2009); In re Albert
Trostel & Sons Co., 29 USPQ2d 1783, 1785-86 (TTAB 1993). The similarity of the
parties’ services weighs strongly in favor of a likelihood of confusion.
B. Similarity of the Marks
We turn next to the du Pont likelihood of confusion factor focusing on the
similarity or dissimilarity of “‘the marks 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 comparing the marks, we are
mindful that the test is not whether the marks can be distinguished when subjected
to a side-by-side comparison, but rather whether they are sufficiently similar in
terms of their overall commercial impression so that confusion as to the source of

9 Three additional such registrations have expired since they were submitted by opposer.
Opposition 91193534

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the services offered under the respective marks is likely to result. San Fernando
Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565 F.2d 683, 196 USPQ 1, 3 (CCPA
1977); Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991),
aff’d, No. 92-1086 (Fed. Cir. June 5, 1992).
Because the similarity or dissimilarity of the marks is determined based on
the marks in their entireties, our analysis cannot be predicated on dissecting the
marks into their various components; that is, the decision must be based on the
entire marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056, 224
USPQ 749, 751 (Fed. Cir. 1985); see also Franklin Mint Corp. v. Master Mfg. Co.,
667 F.2d 1005, 212 USPQ 233, 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.”). On the other hand, different
features may be analyzed to determine whether the marks are similar. Price Candy
Co. v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). In
fact, 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 Nat’l Data
Corp., 224 USPQ at 751.
We note that where, as here, the services are closely related, the degree of
similarity necessary to find likelihood of confusion need not be as great as where
there is a recognizable disparity between the services. See Century 21 Real Estate
Opposition 91193534

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Corp. v. Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir.
1992); Jansen Enters. Inc. v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007).
Opposer’s marks are THE KEG and THE KEG STEAKHOUSE & BAR (with
STEAKHOUSE & BAR disclaimed), the latter in both standard character and
stylized type. Applicant’s mark combines the literal portion KEGGERS DRAFT
HOUSE & GRILL, “DRAFT HOUSE & GRILL” disclaimed, with the design of a
barrel or keg as shown below:

It is well-settled that disclaimed, descriptive matter may have less
significance in likelihood of confusion determinations. See Cunningham, 55
USPQ2d at 1846 (“Regarding descriptive terms, this court has noted that the
‘descriptive component of a mark may be given little weight in reaching a conclusion
on the likelihood of confusion.’”) (quoting In re Nat’l Data Corp., 224 USPQ at 752);
In re Dixie Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In
re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter
is often “less significant in creating the mark’s commercial impression”).
Although less significant to our analysis, the disclaimed words in the parties’
respective marks – “DRAFT HOUSE & GRILL” in the applied-for mark and
“STEAKHOUSE & BAR” in two of opposer’s registered marks – are descriptive or
Opposition 91193534

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generic terms for very similar or related restaurant and bar services. Furthermore,
these phrases follow the same pattern of two syllables, the second syllable being
“HOUSE,” joined with an ampersand to a one-syllable word.
We give more weight to the first, distinctive portions of the parties’ marks:
KEGGERS, which also is by far the largest literal element of applicant’s mark, on
the one hand, and KEG on the other.10 Dictionary definitions of record show that
“keg” may be defined as a small barrel, and more specifically, as a barrel of beer.11
Definitions of the slang term “kegger” include a “keg of beer,” a “party or similar
event at which beer is served (usually directly from a keg),” and “a party featuring
one or more kegs of beer.”12 The meanings of these two terms are thus closely
related as well as suggestive in association with bar services. That is, “keg” and
“keggers” are equally suggestive that a feature of the parties’ restaurant and bar
services will be beer.
We recognize that applicant seeks to register a design mark incorporating an
image of a keg. However, a number of our cases “reflect the principle that if a mark
comprises both a word and a design, the word is normally accorded greater weight
because it would be used by purchasers to request the goods or services.” M.C.I.
Foods, Inc. v. Brady Bunte, 96 USPQ2d 1544, 1551 (TTAB 2010). Moreover, the
single-keg design calls to mind opposer’s KEG Marks, heightening the similarity.

10 The definite article “THE” is insignificant as a source-identifier in opposer’s marks. See,
e.g., In re Thor Tech, Inc., 90 USPQ2d 1634, 1635 (TTAB 2009).
11 Oxford English Dictionary; Merriam-Webster Unabridged Dictionary.
12 Id.; see also Smith Tr. at 21:22-23 (“Keggers means several kegs of beer, a party, frat
parties, that’s where you’ll find them.”); Maclean Tr. at 118:5-12 (keggers “can be used in
terms of beer parties or tailgate parties and beer halls”).
Opposition 91193534

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We find that, in the context of their services, the parties’ marks are similar in
sight, sound, meaning, and overall commercial impression. The similarity of the
parties’ marks weighs in favor of a likelihood of confusion.13
C. Channels of Trade and Conditions of Sale
The third du Pont factor assesses the similarity of the trade channels for the
parties’ services, while the fourth du Pont factor considers the conditions under
which and buyers to whom sales are made. Because there are no limitations to the
recitation of services in the application or opposer’s registrations as to channels of
trade and classes of purchasers, we must presume that the parties’ services travel
through all usual channels of trade and are offered to all normal potential
purchasers. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981); see also Paula Payne
Prods. Co. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973).
Opposer submitted 12 Internet printouts from the websites of third parties
advertising both restaurant and sports bar services. In addition, applicant testified
that some of the same customers patronize both sports bars and restaurants. See
Smith Tr. at 94:15-23, 95:5-19. Considering all the evidence of record, we find that
applicant’s services would travel through the same or similar channels of trade to
the same or similar customers as opposer’s services.
Du Pont factors three and four weigh in opposer’s favor.

13 The record shows that opposer’s employees are referred to as “Keggers” internally and to
some current and prospective business partners, but opposer has not established that the
general consuming public is exposed to use of this term in association with its restaurant
and bar services to any significant extent. See Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d
1187, 1194 (TTAB 2007).
Opposition 91193534

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D. Strength of Opposer’s Marks
Du Pont factor five assesses the strength of opposer’s marks through, for
example, evidence of sales, advertising, and length of use. As noted, opposer’s KEG
Marks have been in use in the United States for nearly 40 years, and opposer
currently operates 16 U.S. restaurants. Although opposer’s annual sales and
marketing figures were submitted under seal, they are substantial. Opposer has
also made of record certain of its direct mailings, fliers, and advertisements in print
publications (including current and formerly printed newspapers such as The
Dallas Morning News, Fort Worth Star-Telegram, Seattle Post-Intellegencer, and
Rocky Mountain News, and magazines and dining guides in Phoenix, Fort Worth,
and Denver) as well as on television and radio and at sporting venues. All of these
advertising and promotional materials include opposer’s KEG Marks. We find that
the strength of opposer’s marks weighs in favor of a likelihood of confusion.
E. Number and Nature of Similar Marks in Use for Similar Services
Turning to the final du Pont factor relevant here, applicant submitted
Internet screenshots referencing 15 third parties with names incorporating the
term “keg” or “kegger” in association with restaurant and bar services.14 On its
face, third-party evidence like that submitted by applicant shows “that the public
may have been exposed to those internet websites” and therefore may be aware of

14 Opposer objected to this evidence as “inadmissible hearsay,” but did not move to exclude
it. See Opposer’s Brief at 5, 24-25 n.4; Reply Brief at 14. The screenshots were properly
submitted via notice of reliance in accordance with the requirements of Safer, Inc. v. OMS
Investments, Inc., 94 USPQ2d 1031, 1038 (TTAB 2010), and are admissible for the limited
purpose of demonstrating what they show on their face, not the truth thereof. Opposer’s
criticisms instead go to the probative value of this evidence, which we discuss infra.
Opposition 91193534

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the marks used therein. Rocket Trademarks Pty Ltd. v. Phard S.p.A., 98 USPQ2d
1066, 1072 (TTAB 2011). Such evidence, however, generally has minimal probative
value where, as here, it is not accompanied by any evidence of consumer awareness.
See Penguin Books Ltd., 48 USPQ2d at 1284 n.5 (noting that white pages listings do
not show that the public is aware of the companies). Applicant has not established
length or extent of use of the referenced names; rather, applicant’s witness testified
that he did not know whether any of these entities was in business. See Smith Tr.
at 43:2-57:22.
The record does not contain sufficient probative evidence of third-party use to
establish a crowded field of KEG-formative marks for similar bar services such that
consumers are accustomed to distinguishing among them based on relatively small
differences in the marks. See, e.g., AutoZone Parts, Inc. v. Dent Zone Cos., 100
USPQ2d 1356, 1364-65 (TTAB 2011). We find that du Pont factor six therefore is
neutral.
Weighing the Factors
Applicant proposes to register a mark that is similar to opposer’s KEG Marks
for closely related services offered to the same classes of customers through the
same channels of trade. Du Pont factors one through five thus weigh in opposer’s
favor, while the remaining du Pont factors are neutral or inapplicable.
On balance, we find that opposer has established by a preponderance of the
evidence that applicant’s mark KEGGERS DRAFT HOUSE & GRILL and design is
likely to cause confusion with opposer’s marks THE KEG and THE KEG
STEAKHOUSE & BAR when used in association with the parties’ respective bar
Opposition 91193534

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services. To the extent we have doubt, it must be resolved in favor of the prior
registrant. Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1202 (TTAB 2007);
Hard Rock Cafe Int’l (USA) Inc. v. Elsea, 56 USPQ2d 1504, 1514 (TTAB 2000).
Decision: The opposition is sustained and registration to applicant is
refused.15

15 As explained herein, applicant’s motion to amend its identification of services would not
avoid a likelihood of confusion and therefore is denied as moot.