Buffalo Bayou Distilleries, LLC

This Opinion Is Not a
Precedent of the TTAB

Mailed: July 30, 2019


Trademark Trial and Appeal Board

In re Buffalo Bayou Distilleries, LLC

Application Serial No. 87489082

John S. Egbert of Egbert, McDaniel & Swartz, PLLC
for Buffalo Bayou Distilleries, LLC.

Yocheved Bechhofer, Trademark Examining Attorney, Law Office 114,
Laurie Kaufman, Managing Attorney

Before Bergsman, Pologeorgis, and English,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Buffalo Bayou Distilleries, LLC (“Applicant”) seeks registration on the Principal

Register of the mark CABOOZE (in standard characters) for “alcoholic beverages,

namely, spirits,” in Class 33.1

1 Application Serial No. 87489082 was filed June 14, 2017 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona intent to use the
mark in commerce.
Page references to the application record are to the downloadable .pdf version of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs and orders
on appeal are to the Board’s TTABVUE docket system.
Serial No. 87489082 No.

The Examining Attorney refused to register Applicant’s mark under Section 2(d)

of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so

resembles the marks in the three registrations set forth below, owned by the same

registrant, as to be likely to cause confusion:

1. Registration No. 4678396 for the mark CABOOSE BREWING CO. and design,

reproduced below, for “beer,” in Class 32;2

The mark consists of a circular design with train tracks and a wood grain pattern,

above the stylized wording “CABOOSE BREWING CO.”

Registrant disclaimed the exclusive right to use the term “Brewing Co.”

2. Registration No. 4689937 for the mark CABOOSE BREWING CO. (in standard

characters) for “beer,” in Class 32.3 Registrant disclaimed the exclusive right to use

the term “Brewing Co.”

3. Registration No. 5218400 for the mark CABOOSE BREWING CO. and design,

reproduced below, for “beer,” in Class 32;4

2 The registration issued January 25, 2015.
3 The registration issued February 17, 2015.
4 The registration issued March 21, 2017.

Serial No. 87489082 No.

The mark consists of a circular design with two concentric outer circles, with train

tracks inside, above the stylized wording “CABOOSE BREWING CO.”

Registrant disclaimed the exclusive right to use the term “Brewing Co.”

Our determination under Section 2(d) is based on an analysis of all of the

probative facts in evidence that are relevant to the factors bearing on likelihood of

confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567

(CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S.

___, 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling

Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We have considered each

DuPont factor that is relevant or for which there is evidence of record. See M2

Software, Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir.

2006); ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB

2015) (“While we have considered each factor for which we have evidence, we focus

our analysis on those factors we find to be relevant.”). “[E]ach case must be decided

on its own facts and the differences are often subtle ones.” Indus. Nucleonics Corp. v.

Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973) (internal citations removed).

In any likelihood of confusion analysis, two key considerations are the similarities

between the marks and the similarities between the goods or services. See In re

Serial No. 87489082 No.

Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);

Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29

(CCPA 1976) (“The fundamental inquiry mandated by § 2(d) goes to the cumulative

effect of differences in the essential characteristics of the goods and differences in the

marks.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747

(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for

which there is record evidence but ‘may focus … on dispositive factors, such as

similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v.

Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).

Because the designs in the marks in two of the cited registrations arguably contain

additional points of difference with Applicant’s mark, we confine our analysis to the

issue of likelihood of confusion between Applicant’s mark and the cited registration

for the mark in standard character form. That is, if confusion is likely between those

marks, there is no need for us to consider likelihood of confusion with the cited marks

with design elements; the standard character mark would be a sufficient basis for us

to affirm the refusal of registration. Conversely, if there is no likelihood of confusion

between Applicant’s mark and the cited mark in standard character form, then there

would be no likelihood of confusion with the marks with design elements. See, e.g., In

re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).

I. The strength of the CABOOSE BREWING CO. mark including the number
and nature of similar marks in use on similar goods.

To determine the conceptual strength of the cited mark under the sixth DuPont

factor, we evaluate its intrinsic nature, that is, where it lies along the generic-

Serial No. 87489082 No.

descriptive-suggestive-arbitrary-fanciful continuum of words. Word marks that are

arbitrary, fanciful, or suggestive are “held to be inherently distinctive.” Wal-Mart

Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 54 USPQ2d 1065, 1068 (2000); see

also, In re Chippendales USA, Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1684 (Fed. Cir.

2010) (“In general, trademarks are assessed according to a scale formulated by Judge

Friendly in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 189 USPQ

759 (2d Cir. 1976), which evaluates whether word marks are ‘arbitrary’ or ‘fanciful,’

‘suggestive,’ ‘descriptive,’ or ‘generic.’”). We also look to evidence pertaining to the

number and nature of similar marks in use on similar goods or services.

We focus on analysis on the word “Caboose” because the term “Brewing Co.” when

used in connection with “beer” is merely descriptive. The word “Caboose” is defined

as follows: 5

1: a ship’s galley

2: a freight-train car attached usually to the rear
mainly for the use of the train crew

3: one that follows or brings up the rear

4: buttocks

When used in connection with Registrant’s beer, the word “Caboose” is arbitrary

because it is a “known word used in an unexpected or uncommon way.” Nautilus Grp.,

Inc. v. Icon Health & Fitness, Inc., 372 F.3d 1330, 71 USPQ2d 1173 (Fed. Cir. 2004)

(defining an arbitrary mark as a “known word used in an unexpected or uncommon

5 Merriam-Webster.com attached to Applicant’s September 6, 2018 Request for
Reconsideration (TSDR 12).

Serial No. 87489082 No.

way” and observing that such marks are typically strong); see also Palm Bay Imps.

Inc. v. Veuve Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689,

1692 (Fed. Cir. 2005) (arbitrary terms are conceptually strong trademarks).

Applicant argues to the contrary contending that there are numerous CABOO-

formative marks registered in the USPTO and in the marketplace, “which is

indicative of a weak mark that is used to describe numerous goods and services

outside of the scope of the goods sold under the cited mark.”6 To support its argument,

Applicant submitted copies of three registrations, owned by two entities, listed below:

• Registration No. 3335917 for the mark RED CABOOSE and Registration No.

526453 for the mark RED CABOOSE WINERY AND VINEYARDS both for wines;


• Registration No. 4925652 for the mark LOOSE CABOOSE LAGER for beer.7

6 Applicant’s Brief, p. 15 (5 TTABVUE 16).
7 March 14, 2018 Response to Office Action (TSDR 27-32). Applicant also proffered that the
USPTO database includes 41 CABOOSE registrations and applications of which eight are in
Classes 32 and 33. However, Applicant did not include copies of those registrations and
applications and because we do not take judicial notice of registrations and applications
residing in the USPTO database, we cannot consider them. In re Wada, 48 USPQ2d1689,
1689 n.2 (TTAB 1998) (holding that the Board will not take judicial notice of the thousands
of registered marks incorporating the term NEW YORK for goods and services that do not
originate there), aff’d, 194 F.3d 1297, 52 USPQ2d 1539 (Fed. Cir.1999); Beech Aircraft Corp.
v. Lightning Aircraft Co. Inc., 1 USPQ2d 1290 (TTAB 1986) (“[W]e do not take judicial notice
of application and registration files that reside in the Patent and Trademark Office on the
basis of their mere identification in briefs, pleadings, and evidentiary submissions.”); In re
Duofold, Inc., 184 USPQ 638 (TTAB 1974). Thus, Applicant’s argument is not supported by
this evidence.
Further, pending applications are evidence only that the applications were filed on a certain
date. Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007); Interpayment
Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003).

Serial No. 87489082 No.

Three third-party registrations owned by two entities do not prove that the word

“Caboose” is so weak and diluted that Registrant’s mark CABOOSE BREWING CO.

is entitled to only a narrow scope of protection. Compare Jack Wolfskin Ausrustung

Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363,

116 USPQ2d 1129, 1136 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 982, (2016) (“Jack

Wolfskin presented voluminous evidence of paw print design elements that have been

registered and used in connection with clothing.”); Juice Generation, Inc. v. GS

Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1673 n.1, 1674-75 (Fed. Cir. 2015)

(“Juice Generation introduced evidence of a fair number of third-party uses of marks

containing “peace” and “love” followed by a third, product-identifying term”

demonstrating that “a considerable number of third parties [in excess of 20] use

similar marks was shown in uncontradicted testimony.”).

Because Registrant’s CABOOSE BREWING CO. mark is an arbitrary mark that

is conceptually strong, we find that Registrant’s mark is entitled to the broad scope

of protection afforded an inherently distinctive or arbitrary mark. See In re Opus One

Inc., 60 USPQ2d 1812, 1813-14 (TTAB 2001) (arbitrary mark is considered strong

and entitled to a “broad scope of protection”).

II. The similarity or dissimilarity of the marks in their entireties in terms of
appearance, sound, connotation and commercial impression.

We now turn to the DuPont likelihood of confusion factor focusing on the similarity

or dissimilarity of the marks in their entireties as to appearance, sound, connotation

and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these

elements may be sufficient to find the marks confusingly similar.” In re Davia,

Serial No. 87489082 No.

110 USPQ2d 1810, 1812 (TTAB 2014); accord Krim-Ko Corp. v. Coca-Cola Bottling

Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity

in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted).

In comparing the marks, we are mindful that “[t]he 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.” Cai v. Diamond Hong,

Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs.

Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir.

2012)). The proper focus is on the recollection of the average customer, who retains a

general rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas

Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); L’Oreal S.A. v.

Marcon, 102 USPQ2d 1434, 1438 (TTAB 2012); Winnebago Indus., Inc. v. Oliver &

Winston, Inc., 207 USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co.,

190 USPQ 106, 108 (TTAB 1975). Because the goods at issue are beer and spirits, the

average customer is an ordinary consumer.

Applicant is seeking to register the mark CABOOZE and the cited mark is

CABOOSE BREWING CO. The dominant portion of Registrant’s mark is the word

“Caboose” because the term “Brewing Co.” is merely descriptive and Registrant has

disclaimed the exclusive right to use it. It is well-settled that disclaimed, descriptive

matter may have less significance in likelihood of confusion determinations. See In re

Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing

Serial No. 87489082 No.

In re Dixie Rests., Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed. Cir.

1997)); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed.

Cir. 2000) (“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., 753 F.2d 1056, 224 USPQ

749, 752 (Fed. Cir. 1985)); 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”). There is nothing improper in stating that, for rational reasons, more or

less weight has been given to a particular feature of a mark, such as a common

dominant element, provided the ultimate conclusion rests on a consideration of the

marks in their entireties. Nat’l Data Corp., 224 USPQ at 751; see also In re Viterra

Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012).

The significance of the word “Caboose” as the dominant element of Registrant’s

mark is further reinforced by its location as the first part of the mark. See In re Detroit

Athletic Co., 128 USPQ2d at 1049 (finding “the identity of the marks’ two initial words

is particularly significant because consumers typically notice those words first”);

Palm Bay Imps., 73 USPQ2d at 1692 (“Veuve” is the most prominent part of the mark

VEUVE CLICQUOT because “veuve” is the first word in the mark and the first word

to appear on the label); Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d

874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon encountering the marks,

consumers will first notice the identical lead word); In re Integrated Embedded, 120

Serial No. 87489082 No.

USPQ2d 1504, 1513 (TTAB 2016) (noting that the dominance of BARR in the mark

BARR GROUP is reinforced by its location as the first word in the mark); Presto

Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“it is often

the first part of a mark which is most likely to be impressed upon the mind of a

purchaser and remembered”).

Finally, some consumers will refer to Registrant’s beer as CABOOSE because they

will shorten CABOOSE BREWING CO. to CABOOSE. “[U]sers of language have a

universal habit of shortening full names – from haste or laziness or just economy of

words. Examples are: automobile to auto; telephone to phone; necktie to tie; gasoline

service station to gas station.” In re Abcor Dev. Corp., 588 F.2d 511, 200 USPQ 215,

219 (CCPA 1978) (J. Rich, concurring).

[C]ompanies are frequently called by shortened names,
such as Penney’s for J.C. Penney’s, Sears for Sears and
Roebuck (even before it officially changed its name to Sears
alone), Ward’s for Montgomery Ward’s, and Bloomies for

Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333 (TTAB 1992); see

also Big M Inc. v. U.S. Shoe Co., 228 USPQ 614, 616 (TTAB 1985) (“[W]e cannot

ignore the propensity of consumers to often shorten trademarks and, in the present

case, this would be accomplished by dropping the ‘T.H.’ in referring to registrant’s

stores [T.H. MANDY].”).

CABOOZE is similar in appearance to CABOOSE. Slight differences in marks do

not normally create dissimilar marks. See In re Great Lakes Canning, Inc., 227 USPQ

483, 485 (TTAB 1985) (applicant’s mark CAYNA (stylized is similar to CANA). In

Great Lakes Canning, the Board made the following finding of fact:
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Serial No. 87489082 No.

Moreover, although there are certain differences between
the [marks CAYNA and CANA] in appearance, namely, the
inclusion of the letter ‘Y’ and the design feature in
applicant’s mark, there are also obvious similarities
between them. Considering the similarities between the
marks in sound and appearance, and taking into account
the normal fallibility of human memory over a period of
time (a factor that becomes important if a purchaser
encounters one of these products and some weeks, months,
or even years later comes across the other), we believe that
the marks create substantially similar commercial
impressions. Even those purchasers who are fully aware of
the specific differences between the marks may well
believe, because of the similarities between them, that the
two marks are simply variants of one another, used by a
single producer to identify and distinguish companion lines
of products.

Id. See also Mag Instrument, Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1715 (TTAB

2010) (difference of a single letter does not suffice to distinguish MAG STAR from

MAXSTAR); Alfacell v. Anticancer Inc., 71 USPQ2d 1301, 1305 (TTAB 2004)

(ONCASE is similar to ONCONASE); Kabushiki Kaisha Tokeiten v. Scuotto, 228

USPQ 461, 462 (TTAB 1985) (“[T]he term ‘SEYCOS’ is simply so close in appearance

and pronunciation to ‘SEIKO’ as to make source confusion inevitable when the marks

are used in connection with identical goods.”); Hercules v. Nat’l Starch, 223 USPQ

1244, 1246 (TTAB 1984) (NATROSOL and NATROL is similar because “the clearly

dominant aspect of both marks is that the first four letters and the final two are the


While not phonetically identical, CABOOZE and CABOOSE are susceptible to

similar pronunciations. Taking into account the normal fallibility of human memory

over time, the marks sound similar enough that a consumer hearing CABOOZE in

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Serial No. 87489082 No.

connection with spirits may call to mind CABOOSE BREWING CO. with which

he/she is already familiar or vice versa.

While CABOOZE for Applicant’s spirits connotes “booze,” which is different in

meaning from CABOOSE, because of the similarities in appearance and sound,

purchasers may well believe that the two marks are simply variants of one another,

used by a single producer to identify and distinguish companion lines of products.

When considering the marks in their entireties, we find that they are more similar

than dissimilar and that this DuPont factor weighs in favor of finding that there is a

likelihood of confusion.

III. The similarity or dissimilarity and nature of the goods.

Applicant is seeking to register CABOOZE for spirits and Registrant’s mark

CABOOSE BREWING CO. is for beer. The issue here, of course, is not whether

purchasers would confuse the parties’ goods, but rather whether there is a likelihood

of confusion as to the source of these goods. See In re Cook Medical Tech. LLC, 105

USPQ2d 1377, 1380 (TTAB 2012); Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13

USPQ2d 1618, 1624 (TTAB 1989); In re Rexel Inc., 223 USPQ 830 (TTAB 1984).

To show that beer and spirits are related products, the Examining Attorney

introduced third-party use-based registrations for marks registered for both products

and third-party websites for companies selling beer and spirits under the same mark.

The Examining Attorney proffered 55 third-party use-based registrations. Third-

party registrations based on use in commerce that individually cover a number of

different goods may have probative value to the extent that they serve to suggest that

the listed goods are of a type that may emanate from the same source. In re Albert
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Serial No. 87489082 No.

Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993); In re Mucky Duck

Mustard Co. Inc., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d mem. 864 F.2d 149

(Fed. Cir. 1988). Representative registrations, with relevant portions of the

identifications, are listed below.8

JOHNNY FLAMINGO 4071312 Beer; spirits
EWING YOUNG 3975642 Beer; distilled spirits
O’HARA’S 4133934 Beer; spirits
CILICIA 4243654 Beer; spirits
DEDICATED TO THE 4397040 Beer; spirits

The Examining Attorney submitted excerpts from eight third-party websites

showing the same marks used to identify beer and spirits. The third-party websites

are listed below:

• Altech Lexington Brewing & Distilling Co. (kentuckyale.com) advertising beer,

spirits, whiskey, and bourbon identified by a horse’s head logo;9

• Bent Brew Distillery (bentbrewdistillery.com) advertising amber blonde ale and

gin identified by a BB BENT logo;10

• The Depot Craft Brewery Distillery (thedepotreno.com) advertising THE

DEPOT whiskey and pale ale;11

8 April 25, 2018 Office Action (TSDR 11-175).
9 September 14, 2017 Office Action (TSDR 13-14).
10 Id. at TSDR 15-16.
11 Id. at TSDR 17-18.

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Serial No. 87489082 No.

• Dogfish Head (dogfish.com) advertising spirits and beer identified by a fish


• Grand River Brewery (grandriverbrewery.com) advertising GRAND RIVER

beer and spirits;13

• Little Toad Creek Brewery & Distillery (littletoadcreek.com) advertising

LITTLE TOAD CREEK beer and spirits;14

• New Holland Brewing and New Holland Artisan Spirits (newhollandbrew.com)

advertising NEW HOLLAND beer and spirits;15 and

• Ranger Creek Brewing & Distilling (drinkrangercreek.com) advertising

RANGER CREEK pale ale and bourbon and rye.16

Applicant argues that beer and spirits are not necessarily related merely because

they are both beverages containing alcohol and criticizes the above-noted evidence of

relatedness “because a very small sample of websites display information about beer

and liquor.”17

When one considers the scope of the internet, and the vast
number of websites dedicated to beer as well as liquor, a
mere [eight] instances of both beer and liquor appearing in
the same website is hardly surprising. It is unclear what
these [eight] examples of websites, who may not limit the
content of their site to solely beer or liquor is intended to
establish. Certainly, this sparse evidence does not meet the

12 April 25, 2018 Office Action (TSDR 176-178).
13 Id. at 179-180.
14 Id. at 181-182.
15 Id. at 183-185.
16 Id. at 186-188.
17 Applicant’s Brief, pp. 11-13 (5 (TTABVUE 12-14).

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Serial No. 87489082 No.

Examiner’s burden of proof in establishing the relatedness
of the goods.18

We disagree with Applicant’s contention that the quantity of the Examining

Attorney’s evidence may be lacking. As noted above, we find that the quality of the

registration and Internet evidence establishes beer and spirits are related products

because beer and spirits may emanate from the same source and be identified by the

same mark. If, as Applicant contends, the quantity of the evidence is not sufficient,

then it is incumbent on Applicant to submit evidence explaining why the quantity of

the Examining Attorney’s evidence is not sufficient to prove that beer and spirits are

related products. See In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063

(Fed. Cir. 2003) (reversing the Board’s finding that beer and restaurant services are

related based on Applicant’s evidence that the number of brewpubs, microbreweries,

and specialty breweries were a very small percentage of the number of restaurants

that brew their own beer or sell house brands of beer: “the small number of such

registrations [for beer and restaurant services] suggest that it is quite uncommon for

restaurants and beer to share the same trademark.”). Applicant did not do that.

We find that the evidence of record sufficiently shows that beer and spirits are

related products.

IV. Established, likely-to-continue channels of trade and classes of consumers.

The third-party website evidence shows that beer and spirits are offered for sale

at brewery/distilleries. Also, the evidence shows that many of the brewery/distilleries

18 Applicant’s Brief, p. 13 (5 TTABVUE 14).

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Serial No. 87489082 No.

feature taprooms/restaurants and sponsor events where their products are sold.

Thus, beer and spirits are offered in at least some of the same channels of trade to

some of the same class of consumers.

Applicant argues that the description of goods at issue, spirits and beer, are

“extremely narrow and not open for expansion of use” and that neither Applicant, nor

Registrant sell anything other than their respective products.19 While that may be

true, it does nothing to rebut the fact that breweries/distilleries sell both beer and

spirits to the same consumers.

V. Conclusion

Because Registrant’s mark is conceptually strong, the marks are similar, the

goods are related, and the goods are offered in some of the same channels of trade

and to some of the same classes of consumers, we find that Applicant’s mark

CABOOZE for “alcoholic beverages, namely, spirits” is likely to cause confusion with

the registered mark CABOOSE BREWING CO. for beer.

Decision: The refusal to register Applicant’s mark CABOOZE is affirmed.

19 Applicant’s Brief, p. 11 (5 TTABVUE 12).

– 16 –