Mystic Mountain Distillery LLC

This Opinion is not a
Precedent of the TTAB

Mailed: September 17, 2019

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Mystic Mountain Distillery LLC
_____

Serial No. 87014045
_____

Ellen Reilly of Reilly Intellectual Property Law Firm,
for Mystic Mountain Distillery LLC.

Ronald McMorrow, Trademark Examining Attorney, Law Office 118,
Michael W. Baird, Managing Attorney.

_____

Before Bergsman, Goodman and Pologeorgis,
Administrative Trademark Judges.

Opinion by Goodman, Administrative Trademark Judge:

Mystic Mountain Distillery LLC (“Applicant”) seeks registration on the Principal

Register of the mark shown below for “Whiskey” in International Class 33.1

1 Application Serial No. 87014045 was filed on April 26, 2016, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b). “WHISKEY, HANDCRAFTED AND SMALL BATCH”
is disclaimed. The description of the mark is as follows: “The mark consists of a circle made
with rope, within which is a smiling skull wearing a cowboy hat. There is an outward facing
pistol on each side of the skull, underneath the rim of the cowboy hat, and a banner on the
bottom portion of the circle containing the words “BRAD LEE SCHROEDER.” Above the
circle are the stylized words “MYSTIC MOUNTAIN” above the stylized words “OUTLAW
WHISKEY,” and below the circle are the stylized words “HANDCRAFTED” above the
stylized words “SMALL BATCH,” which are separated by a longhorn cattle skull.” The
Serial No. 87014045

The Trademark Examining Attorney has refused registration of 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 registered mark OUTLAW (in standard

characters) for “alcoholic beverages” in International Class 33 as to be likely to cause

confusion, mistake or deceive.2

When the refusal was made final, Applicant appealed and requested

reconsideration. After the Examining Attorney denied the request for

reconsideration, the appeal was resumed. We affirm the refusal to register.

name(s), portrait(s), and/or signature(s) shown in the mark identifies Brad Lee Schroeder,
whose consent(s) to register is made of record. Color is not claimed as a feature of the mark.

Page references to the application record refer to the online database of the USPTO’s
Trademark Status & Document Retrieval (TSDR) system. References to the briefs on appeal
refer to the Board’s TTABVUE docket system.

2 Registration No. 3221418 issued March 27, 2007; renewed.

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Serial No. 87014045

I. Evidentiary Issue

Both Applicant and the Examining Attorney attached evidence to their briefs.

Applicant submitted copies of the certificate of registrations of third-party

registrations, which had previously been submitted with its request for

reconsideration in the form of TSDR printouts. Applicant also submitted copies of

two certificate of registrations it owns which had also had been submitted on

reconsideration in the same form. The Examining Attorney submitted a dictionary

definition from Merriam-Webster dictionary (merriam-webster.com) for “whiskey”

requesting that the Board take judicial notice.

In its brief, Applicant also refers to eight third-party uses of “outlaw” in connection

with whiskey and eight third-party uses of “outlaw” in connection with other alcoholic

beverages. The Examining Attorney has neither objected to the list nor addressed it.

Trademark Rule 2.142(d) provides that the application record should be complete

prior to the filing of an appeal. The third-party certificates of registration and copies

of Applicant’s certificates of registration are not new evidence and may be relied on

by Applicant.3 The dictionary definition submitted by the Examining Attorney is the

type of evidence of which the Board may take judicial notice, and therefore we

consider it.4 In re Nieves & Nieves LLC, 113 USPQ2d 1639, 1642 (TTAB 2015). As to

3November 21, 2016 Response to Office Action at TSDR 2-15; January 2, 2019 Request for
Reconsideration at TSDR 2-21 and 5 TTABVUE.
4The Board may take judicial notice of dictionary definitions, including online dictionaries
that exist in printed format. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4 (TTAB
2014), aff’d, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); In re Red Bull GmbH, 78
USPQ2d 1375, 1378 (TTAB 2006).

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Serial No. 87014045

the list of actual uses of “outlaw” for whiskey and alcoholic beverages in Applicant’s

brief, Applicant has the responsibility to make sure that the record is complete prior

to filing a notice of appeal. In re Van Valkenburgh, 97 USPQ2d 1757, 1768 n. 32, 1769

(TTAB 2011). Accordingly, we have given no consideration to this information.

II. Likelihood of Confusion

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”). See also In re Majestic Distilling Co., 315 F.3d 1311, 65

USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion analysis, two key

considerations are the similarities between the marks and the similarities between

the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192

USPQ 24 (CCPA 1976). These factors, and the other relevant DuPont factors now

before us, are discussed below. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127

USPQ2d 1797, 1800 (Fed. Cir. 2018) (quoting In re Mighty Leaf Tea, 601 F.3d 1342,

94 USPQ2d 1257, 1259 (Fed. Cir. 2010) (“Not all of the DuPont factors are relevant

to every case, and only factors of significance to the particular mark need be

considered.”)); 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.”).

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Serial No. 87014045

A. Similarity or Dissimilarity of the Goods and Channels of Trade/Classes
of Purchasers

We turn first to the DuPont factor regarding the similarities or dissimilarities

between the respective goods as identified in the application and the cited

registration. See Octocom Sys., Inc. v. Houston Computers Servs. Inc., 918 F.2d 937,

16 USPQ2d 1783, 1787 (Fed. Cir. 1990) (“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 the sales of goods are directed.”). See also Paula Payne

Prods. v. Johnson Publ’g Co., 473 F.2d 901, 177 USPQ 76, 77 (CCPA 1973)

(“Trademark cases involving the issue of likelihood of confusion must be decided on

the basis of the respective descriptions of goods.”).

Applicant’s goods are “whiskey” and Registrant’s goods are “alcoholic beverages.”

The definition of “whiskey,” as provided by the Examining Attorney, is “: a strong

alcoholic drink made from a grain (such as rye, corn, or barley).”5 We take judicial

notice that an “alcoholic beverage” is “any fermented liquor, such as wine, beer, or

distilled spirit, that contains ethyl alcohol, or ethanol (CH3CH2OH), as an

intoxicating agent.” … [and a] distilled beverage, includes such liquors as whiskey,

gin, vodka, rum, brandy, and liqueurs, or cordials.”6

5 9 TTABVUE 10 (www.merriam-webster.com).
6ENCYCLOPÆDIA BRITANNICA. Encyclopædia Britannica Online (entry last updated May 27,
2019). The Board may take judicial notice of information from encyclopedias. In re Mr. Recipe,
LLC, 118 USPQ2d 1084, 1087 n.3 (TTAB 2016) (judicial notice taken from encyclopedia).

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Serial No. 87014045

We give no weight to Applicant’s arguments that Applicant’s and Registrant’s

goods are “different and noncompetitive” and that “the mere fact that Applicant’s

goods and Registrant’s goods fall under the broad category of ‘alcohol’ is too tenuous

a connection upon which to base a finding that they are sufficiently related for

purposes of likelihood of confusion.”7

Unrestricted and broad identifications are presumed to encompass all goods of the

type described. In re Solid State Design Inc., 125 USPQ2d 1409, 1413 (TTAB 2018)

(quoting In re Jump Designs LLC, 80 USPQ2d 1370, 1374 (TTAB 2006)). Registrant’s

broadly identified “alcoholic beverages” encompass Applicant’s more specifically

identified “whiskey.” Therefore the goods are, at least, identical in part. See e.g., In

re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1137 (TTAB 2015) (“Applicant’s

broadly worded identification of ‘furniture’ necessarily encompasses Registrant’s

narrowly identified ‘residential and commercial furniture.’”); Jansen Enterprises Inc.

v. Rind, 85 USPQ2d 1104, 1108 (TTAB 2007) (petitioner’s “restaurant services”

encompass respondent’s “restaurant services featuring bagels as a main entrée”).

Because the goods are in part identical and unrestricted as to trade channels, we

must also presume that Applicant’s and Registrant’s identical products travel in the

same ordinary trade and distribution channels and will be marketed to the same

potential consumers. 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

7 7 TTABVUE 19-20.

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Serial No. 87014045

determining likelihood of confusion); 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).

These DuPont factors strongly weigh in favor of likelihood of confusion.

B. Strength or Weakness of the Registered Mark

The sixth DuPont factor requires us to consider the number and nature of similar

marks in use on similar goods or services. DuPont, 177 USPQ at 567. In this regard,

the Federal Circuit has stated that evidence of the extensive registration and use of

a term by others can be “powerful” evidence of weakness. 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); Juice Generation, Inc. v. GS Enters. LLC,

794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015).

Applicant submits that “outlaw” is a weak term and is frequently used in classes

32 and 33 and that “consumers have been educated to distinguish between different

marks on the basis of minute distinctions.”8 As evidence that “outlaw” is a weak term,

Applicant points to third-party uses, listed in its brief, of “outlaw” for whiskey and

alcoholic beverages, and third-party registrations, submitted during examination,

that contain the term “outlaw”.

As we already indicated, we do not consider the listed uses of “outlaw” in the brief

in connection with whiskey and alcohol. For ease of reference, we have reproduced

8 7 TTABVUE 19.

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Serial No. 87014045

below the chart incorporated into Applicant’s brief showing the third-party

registrations and one application that were submitted by Applicant during

examination as evidence of weakness of the term “outlaw” in connection with

alcoholic beverages.

The chart indicates that “Ghost Horse Outlaw” has been cancelled and that “Band

of Outlaws” is an application. A cancelled registration is not evidence of anything

except that it issued, and a pending application is evidence only that the application

was filed on a certain date. See In re Mr. Recipe, LLC, 118 USPQ2d at 1089; In re

Brown-Forman Corp., 81 USPQ2d 1284, 1286 n.3 (TTAB 2006). As to the OUTLAW

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Serial No. 87014045

registration for energy drinks, other than stating that there are many “outlaw” marks

for goods in classes 32 and 33, Applicant has not explained how energy drinks are

related to whiskey and alcoholic beverages. We do not find this registration probative.

In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1751 (Fed. Cir. 2017)

(disregarding third-party registrations for other types of goods where the proffering

party had neither proven nor explained that they were related to the goods in the

cited registration).

The remaining five registrations are the most relevant: SHERIFF HENRY

PLUMMER’S OUTLAW BREWING for “beer”; ALES FOR OUTLAWS for “beers,

ales”; (Outlaw India Pale Ale, Outlaw India Pale Ale) for ale;

JESSE JAMES AMERICA’S OUTLAW BOURBON WHISKEY for liquor, JESSE

JAMES AMERICA’S OUTLAW BEER for beer. We find the three registrations that

relate to a historical figure or a notable individual, Henry Plummer and Jesse James,9

create different commercial impressions than the cited mark. As to the two remaining

third-party, registrations, this evidence falls well short of the “voluminous” and

“extensive” evidence presented in Jack Wolfskin, 116 USPQ2d at 1136 (at least

fourteen relevant third-party uses or registrations of record), or of that in Juice

9 Although Jesse James appears to evoke the historical figure, the Examining Attorney
submits that Jesse James refers to a “specific famous individual” while the Applicant submits
that “Jesse James” refers to Jesse James Dupree a country western singer, a living individual
whose consent is or record, as listed on the registrations. 9 TTABVUE 6; 10 TTABVUE 3; 7
TTABVUE 30-33.

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Serial No. 87014045

Generation, 115 USPQ2d at 1673 n.1 (at least twenty-six relevant third-party uses or

registrations of record).

We find this DuPont factor neutral.

C. Similarity or Dissimilarity of the Marks

We now consider the similarities or dissimilarities of the marks. We must compare

the marks in their entireties as to appearance, sound, connotation and commercial

impression to determine the similarity or dissimilarity between them. Palm Bay

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

USPQ2d 1689, 1690 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). The test is

not whether the marks can be distinguished when subjected to a side-by-side

comparison, but rather whether the marks are sufficiently similar in terms of their

overall commercial impression that confusion as to the source of the services offered

under the respective marks is likely to result. Coach Servs. Inc. v. Triumph Learning,

LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012) (citation omitted).

It is well settled that one feature of a mark may be more significant than another,

and it is not improper to give more weight to this dominant feature in determining

the commercial impression created by the mark when considering the marks in their

entireties. In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir.

1985) (“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 consideration of the marks in their entireties. Indeed, this type of

analysis appears to be unavoidable.”).

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Serial No. 87014045

Where both words and a design comprise the mark (as in Applicant’s mark), then

the words are normally accorded greater weight because the words are likely to make

an impression upon purchasers, would be remembered by them, and would be used

by them to request the goods and/or services. In re Viterra Inc., 101 USPQ2d at 1908

(citing CBS, Inc. v. Morrow, 708 F.2d 1579, 218 USPQ 198, 200 (Fed. Cir. 1983) (“in

a composite mark comprising a design and words, the verbal portion of the mark is

the one most likely to indicate the origin of the goods to which it is affixed”)). When

trademarks would appear on virtually identical goods or services, as is the case here,

the degree of similarity necessary to support a conclusion of likely confusion declines.

See Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir.

1992).

Applicant’s mark is and Registrant’s mark is

OUTLAW in standard characters. The obvious similarity between Applicant’s and

Registrant’s mark is the identical term OUTLAW, which is similar in sound,

appearance, connotation and commercial impression. Likelihood of confusion is often

found where the entirety of one mark is incorporated within another. See e.g., In re

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Serial No. 87014045

Denisi, 225 USPQ 624, 626 (TTAB 1985) (PERRY’S PIZZA for restaurant services

specializing in pizza and PERRY’S for restaurant and bar services); Johnson

Publishing Co. v. International Development Ltd., 221 USPQ 155, 156 (TTAB 1982)

(EBONY for cosmetics and EBONY DRUM for hairdressing and conditioner). The

question here is whether the other elements in Applicant’s mark sufficiently serve to

distinguish it from the cited mark.

Applicant argues that the Examining Attorney has ignored the additional features

in Applicant’s mark including the prominent design, which has been previously

registered,10 and according to Applicant, is the dominant portion of its applied-for

mark.11 Applicant also points out that it has a registration that contains the term

MYSTIC MOUNTAIN (for MYSTIC MOUNTAIN DISTILLERY for alcohol and spirit

distillery services, which Applicant deems is “a brand identifier”)12 and that the

addition of these two registered marks as well as the additional terms in the applied-

for mark are sufficient to distinguish Applicant’s mark from the cited mark.13

Although the design features in Applicant’s mark are prominently displayed, we

find the literal portion of the mark, namely MYSTIC MOUNTAIN, OUTLAW

WHISKEY, BRAD LEE SCHROEDER, and HANDCRAFTED SMALL BATCH, is

entitled to greater weight. While Applicant argues that the accompanying design “ties

10The registered design mark, Registration No. 5041243, includes the term BRAD LEE
SCHROEDER. January 2, 2019 Request for Reconsideration at TSDR 20.
11 7 TTABVUE 15.
12 Registration No. 5040978, January 2, 2019 Request for Reconsideration at TSDR 18; 10
TTABVUE 2.
13 7 TTABVUE 16; 10 TTABVUE 2.

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Serial No. 87014045

in the theme of Mystic Mountain,”14 we view the design features as simply reinforcing

the OUTLAW portion of Applicant’s mark. We also find that Applicant’s ownership

of other marks that somewhat resemble its applied-for mark is not relevant to the

specific likelihood of confusion issue involving the registered mark OUTLAW. Here,

neither of Applicant’s prior registrations include the term OUTLAW, which is the

point of similarity here between Applicant’s mark and Registrant’s mark.

Further, with respect to the literal portion of Applicant’s mark, we give less weight

to the generic or descriptive words WHISKEY and HANDCRAFTED SMALL BATCH

(informing consumers of the type of alcoholic beverage and that it has been distilled

in small batch) that have been properly disclaimed. In re Chatam Int’l. Inc., 380 F.3d

1340, 71 USPQ2d 1944, 1946 (Fed. Cir. 2004); and In re Binion, 93 USPQ2d 1531,

1534 (TTAB 2009). We find that this generic or descriptive matter has less

significance in creating the mark’s overall commercial impression and therefore is

entitled to less weight in our likelihood of confusion determination. See 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 likelihood of confusion.”’) (quoting

In re Nat’l Data, 224 USPQ at 752).

Thus, the distinctive literal portions of Applicant’s mark are MYSTIC

MOUNTAIN, BRAD LEE SCHROEDER and OUTLAW. We consider out of these

terms that OUTLAW is the most dominant, given that it is the wording that is most

14 10 TTABVUE 2.

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Serial No. 87014045

prominently displayed, MYSTIC MOUNTAIN is a house mark, and is displayed in

smaller type, and BRAD LEE SCHROEDER, in even smaller type, appears to identify

a person that is endorsing or is in some way associated with Applicant’s product.15

Under our case law, the presence of a house mark,16 trade name, or surname,

generally will not suffice to distinguish two otherwise similar product marks, unless

there are recognizable differences in the shared product marks, or unless the shared

product mark is descriptive or highly suggestive as applied to the parties’ goods

and/or services. Compare In re Fiesta Palms LLC, 85 USPQ2d 1360 (TTAB 2007)

(confusion not avoided by applicant’s addition of house mark CLUB PALMS to shared

product mark MVP in absence of evidence that MVP is highly suggestive of casino

services), with Knight Textile Corp. v. Jones Investment Co., 75 USPQ2d 1313 (TTAB

2005) (confusion avoided by applicant’s addition of house mark NORTON

McNAUGHTON to shared product mark ESSENTIALS where evidence (dictionary

definition, twenty-three third-party registrations of ESSENTIALS for clothing)

established that ESSENTIALS is highly suggestive for clothing).

We find that neither of the exceptions to the house mark rule is applicable.

Here, the product marks in question are Registrant’s mark OUTLAW and

Applicant’s mark OUTLAW WHISKEY HANDCRAFTED SMALL BATCH and the

15We consider BRAD LEE SCHROEDER to be analogous to a designer name or other notable
individual and find it appropriate to consider this term under the case law relating to house
marks, trade names and surnames.
16 “A mark could be considered a house mark if the evidence shows that it serves as a mark
for a number of an entity’s products even if the diversity of products would not be so great
that the company would be able to use the term ‘house mark’ in its identification of goods.”
In re Royal BodyCare Inc., 83 USPQ2d 1564, 1568 (TTAB 2007).

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Serial No. 87014045

accompanying design. First, the dominant portion of Applicant’s mark is OUTLAW

which will be accorded more weight in determining the similarity of the marks. As

discussed above, the design simply reinforces the term OUTLAW, and the disclaimed

terms WHISKEY and HANDCRAFTED SMALL BATCH are entitled to less weight.

Cunningham v. Laser Golf Corp., 55 USPQ2d at 1846; In re Appetito Provisions Co.,

3 USPQ2d 1553, 1554 (TTAB 1987). As such, we find the conflicting product marks

to be highly similar.

Second, we find on this record that OUTLAW is not so highly suggestive or

otherwise weak in the marketplace that the presence of the house mark MYSTIC

MOUNTAIN or the addition of the name BRAD LEE SCHROEDER in Applicant’s

mark suffices to avoid confusion. Unlike the situation in Knight Textile, where the

record included dictionary evidence and twenty-three third-party registrations which

established that ESSENTIALS was highly suggestive as applied to clothing, there is

no such dictionary evidence, and the third-party registration evidence, as discussed

above, is minimal. Also, there is no third-party evidence of use in the record to show

that OUTLAW is a weak term in the marketplace. Therefore, Applicant has failed to

show the term OUTLAW is so commonly used or registered in the relevant field that

the addition of MYSTIC MOUNTAIN and BRAD LEE SCHROEDER would be

sufficient to render the marks as a whole distinguishable. Thus, the second exception

is also not applicable here.

Accordingly, we find the general rule controlling in the present situation, i.e.,

Applicant’s addition of its house mark MYSTIC MOUNTAIN and the addition of

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Serial No. 87014045

BRAD LEE SCHROEDER to the product mark OUTLAW WHISKEY

HANDCRAFTED SMALL BATCH and design is not sufficient to avoid a likelihood

of confusion.

In focusing on the dominant portion of Applicant’s mark, we recognize, of course,

that the marks ultimately must be compared in their entireties, including the

additional wording and the design in Applicant’s mark. However, when this

comparison is made, we find that the marks are similar, albeit not identical, in sound,

appearance and meaning. Because of the similarities between the marks in their

entireties, the marks engender similar overall commercial impressions. See, e.g., Bd.

of Regents v. So. Illin. Miners, LLC, 110 USPQ2d at 1189 (composite mark

SOUTHERN ILLINOIS MINERS with design of a stylized coal miner holding a

baseball bat found to engender the same commercial impression as MINERS for

related goods); In re Computer Systems Center Inc., 5 USPQ2d 1378, 1381 (TTAB

1987) (holding CSC ADVANCED BUSINESS SYSTEMS and CSC likely to cause

confusion for related goods, noting that “the inclusion of ‘ADVANCED BUSINESS

SYSTEMS’ as a feature of applicant’s mark is not likely to help customers …

distinguish the source of each party’s service.”). Overall, we find that Applicant’s and

Registrant’s marks are sufficiently similar that when used on goods that are identical

in part would likely cause confusion. In view of the above, we find the first DuPont

factor weighs in favor of a finding of likelihood of confusion.

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Serial No. 87014045

D. Conditions of Sale

We turn finally to the fourth DuPont factor, under which we consider evidence

pertaining to the “[t]he conditions under which and buyers to whom sales are made,

i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 177 USPQ at 567.

Applicant submits that “[c]onsumers of alcohol are particular in their choices,

especially whiskey. Purchasers of premium alcoholic beverages tend to exercise a

high degree of sophistication and care when making their purchasing decisions.”17

However, Applicant has failed to submit evidence to support this contention. See In

re Iolo Technologies LLC, 95 USPQ2d 1498, 1501 (TTAB 2010) (“Applicant urges us

to consider consumer sophistication as a factor. However, applicant has submitted no

evidence that either its consumers or those of registrant would be sophisticated.”).

Neither Applicant’s nor Registrant’s goods are restricted to any particular price

point or consumer. When the goods are unrestricted, it is assumed that they are sold

to all purchasers, including those purchasers exercising only ordinary care, and at all

price points. Bongrain Int’l (Am.) Corp. v. Moquet Ltd., 230 USPQ 626, 628 (TTAB

1986) (“wines” in goods identification “include wines of all types and price ranges”

sold through “all of the customary channels of trade for wine, including supermarkets,

grocery stores, and gourmet shops” to “all potential purchasers thereof, including not

only wine connoisseurs but also unsophisticated purchasers”). “We must therefore

presume that [Registrant’s] and Applicant’s [goods] are offered to both sophisticated

and unsophisticated consumers, and that their purchasing decisions … range from

17 10 TTABVUE 3.

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Serial No. 87014045

thoughtful to hasty,” Primrose Ret. Cmtys., LLC v. Edward Rose Senior Living, LLC,

122 USPQ2d 1030, 1039 (TTAB 2016), and we do not limit “our consideration of this

factor to the more sophisticated purchasers within the classes of potential customers.”

Bd. of Regents v. So. Illin. Miners, LLC, 110 USPQ2d at 1193. We must, in fact,

consider the degree of care that would be exercised by the least sophisticated

consumer. See Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317,

110 USPQ2d 1157, 1163 (Fed. Cir. 2014) (precedent requires consumer care for

likelihood-of-confusion decision to be based “on the least sophisticated potential

purchasers”). As stated, there is no evidence that the least sophisticated potential

purchasers of whiskey exercise particular care in purchasing the goods. Accordingly,

we find this DuPont factor is neutral.

III. Conclusion

We have considered all of the arguments and evidence of record, and all relevant

DuPont factors. When we balance the DuPont factors, we conclude that confusion is

likely to occur between Applicant’s mark and Registrant’s mark.

Decision: The refusal to register Applicant’s mark under

Section 2(d) of the Trademark Act is affirmed.

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