Three Spirits Brewery LLC

Trademark Trial and Appeal Board

Jul 15, 2015

No. 86175819 (T.T.A.B. Jul. 15, 2015)

This Opinion is Not a
Precedent of the TTAB

Mailed: July 15, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Three Spirits Brewery LLC
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Serial No. 86175819
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Jeffrey J. Schwartz of Schwartz Law Firm PC
for Three Spirits Brewery, LLC.

William H. Dawe, III, Trademark Examining Attorney, Law Office 108,
Andrew Lawrence, Managing Attorney.
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Before Wellington, Ritchie, and Lykos,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:
Three Spirits Brewery LLC (“Applicant”) seeks registration on the Principal
Register of the mark HOPPER’S DELIGHT in standard character format for “beer”
in International Class 32.1
The Trademark Examining Attorney has refused registration of Applicant’s
mark on the ground of a likelihood of confusion under Section 2(d) of the Trademark
Act, 15 U.S.C. § 1052(d), in view of the following three registered marks:

1 Application Serial No. 86175819 was filed on January 27, 2014, based on an intent to use
the mark in commerce, under Section 1(b) of the Trademark Act.
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• HOPPERS (in typed characters)2
for “beer and ale” in International Class 32;3

•
for “beer and ale” in International Class 32;4 and

• DELIGHT (in typed characters)
for “alcoholic malt beverages – namely, beer” in International Class 32.5

The first two registrations are owned by a single entity.
After a final refusal was issued, Applicant filed a request for reconsideration
that was denied by the Examining Attorney. Applicant then appealed and the
refusal has been briefed by Applicant and the Examining Attorney.
For the following reasons, we affirm the likelihood of confusion refusal.
Likelihood of Confusion
Our determination of the issue of likelihood of confusion 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). In any likelihood of confusion analysis, however, two key considerations are

2 Effective November 2, 2003, Trademark Rule 2.52, 37 C.F.R. § 2.52, was amended to
replace the term “typed” drawing with “standard character” drawing. A mark depicted as a
typed drawing is the legal equivalent of a standard character mark. See In re Brack, 114
USPQ2d 1338, 1339 n.2 (TTAB 2015).
3 Reg. No. 2143533 issued on March 10, 1998, renewed.
4 Reg. No. 2099536 issued on September 23, 1997, renewed.
5 Reg. No. 1136375 issued on May 27, 1980, renewed.
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the similarities between the marks and the similarities between the goods or
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976). See also, In re Dixie Restaurants Inc., 105 F.3d 1405,
41 USPQ2d 1531 (Fed. Cir. 1997).
Similarity of the Goods, Trade Channels and Classes of Purchasers
We turn first to the du Pont factor involving the relatedness of goods and quickly
discern that the respective goods are identical inasmuch as they all include beer.
Because Applicant’s goods are as compared to each cited registration are either
identical or identical in part, i.e., all are for “beer,” we must presume that the
channels of trade and classes of purchasers are the same for these goods. See In re
Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though
there was no evidence regarding channels of trade and classes of consumers, the
Board was entitled to rely on this legal presumption in determining likelihood of
confusion); see also In re Yawata Iron & Steel Co., 403 F.2d 752, 159 USPQ 721, 723
(CCPA 1968) (where there are legally identical goods, the channels of trade and
classes of purchasers are considered to be the same); American Lebanese Syrian
Associated Charities Inc. v. Child Health Research Institute, 101 USPQ2d 1022,
1028 (TTAB 2011).
Accordingly, the factors involving the similarity of the goods and trade channels
weigh in favor of finding a likelihood of confusion.
Similarity of the Marks
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We now compare the two marks in their entireties and, in doing so, look to their
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, 1692 (Fed. Cir. 2005). We keep in mind that the test is not whether the marks
can be distinguished when subjected to a side-by-side comparison; “[i]nstead, it is
the similarity of the general overall commercial impression engendered by the
marks which must determine, due to the fallibility of memory and the consequent
lack of perfect recall, whether confusion as to source or sponsorship is likely.”
Spoons Restaurants Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991); see
also, Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d
1713, 1721 (Fed. Cir. 2012). Finally, in assessing the similarity or dissimilarity of
the marks, we keep in mind that when marks appear on identical goods, as they do
here, the degree of similarity necessary to support a conclusion of likely confusion
declines. Century 21 Real Estate Corp. v. Century Life of America, 970 F.2d 874, 23
USPQ2d 1698, 1700 (Fed. Cir. 1992).
i. Applicant’s Alleged Parody Involving the Song “Rapper’s Delight”
Before we make comparisons of the marks, we address a key argument made by
Applicant. That is, Applicant argues that its mark HOPPER’S DELIGHT is a
parody of a well-known song called “Rapper’s Delight” and “the effect of the parody
is to create a distinction in the viewer’s mind between [the song and the mark]” and
that this “forms a unique and highly memorable commercial impression.” Brief, p. 7.
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Although Applicant introduced a printout from the Wikipedia entry for the
referenced song which indicates that the song has some popularity in the U.S.,6
there is no evidence that consumers will necessarily associate Applicant’s mark
with the song or perceive the intended play of words on the song. Applicant’s mark
is unlike, for example, WRAPPER’S DELIGHT for wrapping paper goods where one
could conclude an obvious association is not only intended but being made.
Ultimately, without evidence that consumers will actually understand
Applicant’s mark as a play on or parody of the song, we do not find that a separate
commercial impression is being made that associates the mark with the song. Thus,
for purposes of comparing the marks, we do not view any intended parody or play on
words as assisting for purposes of distinguishing the marks.7
ii. HOPPER’S DELIGHT v. HOPPERS (typed and stylized with design)
With respect to the registered HOPPERS marks, both in typeset and stylized
with a border design, Applicant is essentially incorporating this term in its entirety
into the applied-for mark. The apostrophe before the “s” in Applicant’s mark is
unlikely to be noticed by consumers and does not change the pronunciation; even if

6 According to Wikipedia (www.wikipedia.org), the song “Rapper’s Delight” was recorded in
1979 by the American hip hop trio The Sugarhill Gang and is “generally considered to be
the song that first popularized hip hop in the United States and around the world.” The
song is “ranked # 251 on the Rolling Stone magazine’s list of The 500 Greatest Songs of All
Time,” among other mentions. Printout of Wikipedia entry attached to Applicant’s response
(filed on May 28, 2014) to the first Office Action.
7 Applicant is not claiming ‘parody as a defense’ as contemplated and discussed in N.Y.
Yankees P’ship v. IET Prods. & Servs., Inc., 114 USPQ2d 1497 (TTAB 2015). Notably, this
is an ex parte proceeding and the cited registered mark is not the object of Applicant’s
intended parody. Thus we do not speak herein on the issue of parody as a defense.

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noticed, it merely indicates the possessive form of HOPPER and would have little
effect in countering the overall similarity of the marks. See In re Binion, 93
USPQ2d 1531, 1534 (TTAB 2009) (noting that “[t]he absence of the possessive form
in applicant's mark ... has little, if any, significance for consumers in distinguishing
it from the cited mark”); In re Curtice-Burns, Inc., 231 USPQ 990, 992 (TTAB 1986)
(finding the marks McKENZIE'S and McKENZIE “virtually identical in commercial
impression”); Winn's Stores, Inc. v. Hi-Lo, Inc., 203 USPQ 140, 143 (TTAB 1979)
(noting that “little if any trademark significance can be attributed to the apostrophe
and the letter ‘s' in opposer's mark”).
As to the meaning of the marks, the word “hopper” may either mean “one that
hops” or “a usually funnel-shaped receptacle for delivering material (as grain or
coal).”8 In the context of the goods, the word “hop” (or “hops”) also has some
significance to the extent that it is an ingredient for beer.9 Here, it is possible for
any of these meanings both Applicant’s and the Registrant’s marks have very
similar commercial impressions based on regardless of how this term is understood.
“Hoppers” or “Hopper’s” may conjure a person hopping or a reference to an
ingredient of the goods.

8 Merriam-Webster.com. 2011. http://www.merriam-webster.com. The Board may take
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).
9 “Hops” defined as plural form for “the ripe dried pistillate catkins of a hop used especially
to impart a bitter flavor to malt liquors.” Id.
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Finally, we do not ignore the fact that the marks differ due to Applicant’s
addition of the term DELIGHT. However, this addition changes little to the
similarity in the marks’ overall commercial impression. DELIGHT is a laudatory
word that suggests a degree of satisfaction one would presumably have after
drinking the beer. In other words, one already familiar with HOPPERS beer may
mistakenly believe that HOPPER’S DELIGHT is just a reference to the same beer
with an added expression of enjoyment.
In sum, the marks are similar in sight, sound, connotation and commercial
impression.
iii. HOPPER’S DELIGHT v. DELIGHT
Again, Applicant seeks to adopt a mark that incorporates a registered mark,
DELIGHT, in its entirety. Here, although the registered mark is laudatory and
suggestive of a positive quality of the goods, there is no evidence thatDELIGHT
lacks distinctiveness or is otherwise weak or diluted in the field of beer. Even
assuming, arguendo, we were to find that DELIGHT is not a particularly strong
mark, we have long held that a likelihood of confusion is to be avoided as much
between “weak” marks as between “strong” marks, and as between ““weak” and
“strong” marks. See King Candy Company v. Eunice King's Kitchen, Inc., 496 F.2d
1400, 182 USPQ 108, 109 (CCPA, 1974); In re Industrial Expositions, Inc., 194
USPQ 456, 459 (TTAB 1977).
We must also consider the possibility that consumers already familiar with the
DELIGHT mark on beer who then encounter Applicant’s HOPPER’S DELIGHT
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beer may mistakenly believe that both beers emanate from a common source. For
example, because the term HOPPER’S may conjure hops, an ingredient of beer,
consumers may believe HOPPER’S DELIGHT is simply the “hoppier” version of
registrant’s DELIGHT beer.
Conclusion
Because Applicant’s HOPPER’S DELIGHT mark is similar to the Registrants’
marks HOPPERS (in both standard characters and stylized lettering) and
DELIGHT, its concurrent use on identical goods, namely, beer, is likely to cause
confusion as to source, given they will be offered in the same trade channels and
sold to the same purchasers.
Decision: The likelihood of confusion refusal to register Applicant’s mark is
affirmed.