Akerley Farm, LLC

Trademark Trial and Appeal Board

Nov 23, 2020

88344889 (T.T.A.B. Nov. 23, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: November 23, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Akerley Farm, LLC
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Serial No. 88344889
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Anna P. Chang of Sideman & Bancroft LLP,
for Akerley Farm, LLC.
Andrew Crowder-Schaefer, Trademark Examining Attorney, Law Office 104,
Zachary B. Cromer, Managing Attorney.
_____

Before Cataldo, Bergsman and Greenbaum,
Administrative Trademark Judges.

Opinion by Greenbaum, Administrative Trademark Judge:
Akerley Farm, LLC (“Applicant”) seeks registration on the Principal Register of
the composite mark FDR FERMENT DRINK REPEAT BREWING COMPANY and
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Design (“BREWING COMPANY” disclaimed), displayed as , for
“Beers” in International Class 32 and “Taproom services” in International Class 43.1
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, when used in connection with the identified goods and services, so
resembles the registered mark FDR (in standard characters) for “restaurant and bar
services” in International Class 43 as to be likely to cause confusion, mistake or
deception.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.
I. Likelihood of Confusion
Our determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. DuPont de Nemours

1 Application Serial No. 88344889 was filed on March 18, 2019 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use anywhere and
use in commerce since at least as early as September 19, 2018 for the Class 32 goods, and
August 21, 2018 for the Class 43 services. The application describes the mark as follows: “The
mark consists of ‘FERMENT DRINK REPEAT’ with dots before ‘FERMENT’ and after
‘REPEAT,’ followed by the wording ‘BREWING COMPANY,’ arranged in an outlined circle
around the letters ‘FDR,’ with a tap handle extending from the top of the letter ‘D’ in ‘FDR.’”
Color is not claimed as a feature of the mark.
2 Reg. No. 4236985 issued on November 6, 2012. Section 8 Declaration accepted.
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& Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (setting forth factors to be
considered, hereinafter referred to as “DuPont factors”); see also In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We consider
each DuPont factor for which there is evidence and argument. See, e.g., In re Guild
Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). However, in
any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods and services. See In re
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 [du Pont] 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)).
A. Similarity of Dissimilarity of the Goods and Services and Established,
Likely-to-Continue Channels of Trade and Classes of Consumers.
We assess the DuPont factors of the similarity or dissimilarity of the goods and
services and their trade channels based on the goods and services as they are
identified in the application and cited registration. See In re Detroit Athletic Co., 903
F.3d 1297, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018); In re Dixie Rests. Inc., 105 F.3d
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1405, 41 USPQ2d 1531, 1534 (Fed. Cir. 1997); see also Stone Lion Capital Partners,
LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014).
The application identifies “beers” and “taproom services,” and the cited
registration identifies “restaurant and bar services.” AMERICAN HERITAGE
DICTIONARY defines “taproom” as a “bar or barroom.” October 29, 2019 Office Action,
TSDR 2. The “taproom services” identified in the application thus are legally identical
to the “bar services” identified in the cited registration. They also are inherently
related to the “beer” identified in the application, as “beer” is an alcoholic beverage
commonly sold in a bar. See, e.g., Detroit Athletic Co., 128 USPQ2d at 1052 (“[W]e
have held that confusion is likely where one party engages in retail services that sell
goods of the type produced by the other party. . . . ”). See also Hewlett-Packard Co. v.
Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004-05 (Fed. Cir. 2002)
(finding the goods and services related based solely on the descriptions of goods and
services).
In light of these findings, we need not further consider whether the goods and
services identified in the application also are related to the “restaurant” services
identified in the cited registration. See SquirtCo v. Tomy Corp., 697 F.2d 1038, 216
USPQ 937, 938-39 (Fed. Cir. 1983) (holding that a single good among several may
sustain a finding of likelihood of confusion); Tuxedo Monopoly, Inc. v. Gen. Mills Fun
Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA 1981) (likelihood of confusion must
be found if there is likely to be confusion with respect to any item that comes within
the identification of goods or services in the application or registration).
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Because the “taproom services” identified in the application are legally identical
to the “bar services” identified in the cited registration, we presume that the channels
of trade and classes of purchasers are the same. See In re Viterra Inc., 671 F.3d 1358,
101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (identical goods are presumed to travel in
same channels of trade to same class of purchasers) (cited in Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (“With respect to
similarity of the established trade channels through which the goods reach
customers, the TTAB properly followed our case law and ‘presume[d] that the
identical goods move in the same channels of trade and are available to the same
classes of customers for such goods….’”)); In re Inn at St. John’s, LLC, 126 USPQ2d
1742, 1745 (TTAB 2018), aff’d, Slip Op. No 18-2236 (Fed. Cir. Sept. 13, 2019) (mem.)
(“Because the services described in the application and the cited registration are
identical, we presume that the channels of trade and classes of purchasers are the
same.”).
Because beer is a beverage commonly sold in bars, we find that beers are offered
in some of the same channels of trade to some of the same classes of consumers.
These DuPont factors weighs heavily in favor of a finding of a likelihood of
confusion, and Applicant does not argue otherwise.
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B. Similarity or Dissimilarity of the Marks
We next compare Applicant’s composite mark and Registrant’s
mark FDR (in standard characters) “in their entireties as to appearance, sound,
connotation and commercial impression.” Detroit Athletic Co., 128 USPQ2d at 1048
(quoting DuPont, 177 USPQ at 567); see also Palm Bay Imps. Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir.
2005). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.’” Inn at St. John’s, 126 USPQ2d at 1746 (citation omitted); accord
Krim-Ko Corp. v Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ523, 526 (CCPA
1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely
to cause confusion.”) (citation omitted). “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.” Cai v. Diamond Hong,
127 USPQ2d at 1801.
Because similarity is determined based on the marks in their entireties, our
analysis is not predicated on dissecting the marks into their various components.
Stone Lion, 110 USPQ2d at 1161; 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
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in determining likelihood of confusion.”). On the other hand, “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.” In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985).
Further, the marks “must be considered … in light of the fallibility of memory …”
In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014
(quotation omitted). We focus on the recollection of the average consumer—here, an
ordinary consumer of beer—who normally retains a general rather than a specific
impression of trademarks. See id. at 1085; Geigy Chem. Corp. v. Atlas Chem. Indus.,
Inc., 438 F2d 1005, 169 USPQ 39, 40 (CCPA 1971).
Applicant argues that the differences in the marks in appearance and sound
suffice to distinguish them, and that the marks create different commercial
impressions despite the shared term FDR. In particular, Applicant argues that the
wording FERMENT DRINK REPEAT is the dominant portion of Applicant’s
composite mark, where the “stylized letters FDR (with a tap handle extending from
the letter D) of Applicant’s Mark constitute a design element” that makes it less
dominant than the words, “[o]r, at the very least, the letters FDR are ‘so interwoven’
with the words FERMENT DRINK REPEAT that FDR cannot be singled out as the
dominant portion of the mark.” App. Br., 6 TTABVUE 5. Applicant also argues that
Registrant’s mark FDR evokes the well-known former U.S. President, Franklin
Delano Roosevelt, “who is commonly known by his initials,” while “the average
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consumer would understand Applicant’s mark to mean the Ferment Drink Repeat
Brewing Company, given the literal portions of Applicant’s Mark.” Id. at 3. The
Examining Attorney focuses on the similarities between the two marks due to the
shared term FDR, which comprises the entirety of the cited mark and, he contends,
the dominant portion of Applicant’s composite mark. We agree with the Examining
Attorney.
Looking at Applicant’s composite mark in its entirety, the term FDR
immediately attracts the consumer’s attention due to its large size and central
position in a circular carrier. As such, FDR is the dominant element in Applicant’s
composite mark. The design of a stylized tap head protruding from the letter “D” in
the term “FDR” and extending beyond the circular carrier does not overwhelm,
detract from or change the commercial impression of the term FDR, but rather serves
as an unusual visual cue that attracts the eye to the term FDR. The placement of the
wording FERMENT DRINK REPEAT within the carrier, and the relatively small
font size of the wording as compared to the term FDR, reinforces and focuses
attention on FDR, alone, as the source identifier. The descriptive, disclaimed term
BREWING COMPANY is less significant and does not detract from the dominance of
the term FDR in creating the mark’s commercial impression. Dixie Rests., 41 USPQ2d
at 1533-34 (affirming Board’s finding that “DELTA,” rather than the disclaimed
generic term “CAFÉ,” is the dominant portion of the mark THE DELTA CAFÉ.”).
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While there is no rule that a likelihood of confusion is present where one mark
encompasses another, in this case, as in many others, the fact that Registrant’s entire
mark is a term in Applicant’s composite mark increases the similarity between them.
See, e.g., Wella Corp. v. Cal. Concept Corp., 558 F.2d 1019, 194 USPQ 419, 422 (CCPA
1977) (finding CALIFORNIA CONCEPT and surfer design substantially similar to
prior mark CONCEPT); Coca-Cola Bottling Co. of Memphis, Tenn., Inc. v. Joseph E.
Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (applicant’s mark
BENGAL LANCER and design for club soda, quinine water and ginger ale is likely
to cause confusion with BENGAL for gin).
There is no evidence that the term FDR has any recognized meaning or
significance with respect to beer or taproom/bar services, and there is no evidence of
use by third parties of similar marks on similar goods or services that might dilute
the source-identifying capacity of FDR for those goods or services.3 Moreover, to the

3 Applicant submitted printouts from the Forbes Travel Guide about Registrant’s Delano
Hotels in South Beach and Las Vegas, and apparently from Registrant’s website for the “FDR
Delano” in South Beach, which touts “FDR [as] Delano’s subterranean space, aptly named
after the hotel’s presidential namesake…” September 12, 2019 Response to Office Action,
TSDR 21-30, and 31-32, respectively, “for the limited purpose of showing the association
between the letters FDR and President Roosevelt with respect to restaurant and bar
services.” App. Br., 6 TTABVUE 6 n.2. The Forbes Travel Guide printout for the South Beach
Miami location does not use the term FDR at all. And the only references to FDR in the
Forbes Travel Guide printout for the Las Vegas location are buried in a section titled “Heed
the ‘Delanoisms,’” which discusses a card left on the pillow during turndown: “When you flip
the card over, you’ll discover an ‘In the Know’ fact such as this one: FDR wore lucky hats
during his presidential runs. The ice box in each suite is actually a replica of his hat box.
(Insider intel: Delano is named after President Franklin Delano Roosevelt.),” and a passing
reference in the “Dine In” section to a lunch item “said to be one of FDR’s favorites.”
September 12, 2019 Response to Office Action, TSDR 27 and 28, respectively. The two pages
apparently from Registrant’s website for the South Beach location use the term to identify
“Delano’s subterranean space,” which includes a bar and “gourmet” food. The first page does
not mention the former President. The second page does not use the name of the former
President, but it does tout the connection as set out at the beginning of this footnote. Id. at
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extent FDR has any meaning when applied to the involved goods or services, there is
no evidence to support a finding, as Applicant contends, that consumers would not
ascribe the same meaning to Registrant’s identified services and Applicant’s
identified goods and services. While some consumers may view Registrant’s mark
FDR as the initials for former President Franklin Delano Roosevelt, we must also
consider the impact of Registrant’s mark on consumers who are not familiar with that
moniker. We think it likely that such consumers who are familiar with both marks
would perceive Registrant’s mark as a shortened form of Applicant’s mark, with
Registrant’s mark referencing the additional wording FERMENT DRINK REPEAT
in Applicant’s mark, and both identifying single source. Cf. In re Mighty Leaf Tea, 94
USPQ2d at 1260-61 (affirming TTAB’s finding that applicant’s mark ML is likely to
be perceived as a shortened version of registrant’s mark ML MARK LEES).
Finally, the additional wording and design elements in Applicant’s mark do not
distinguish Applicant’s mark from Registrant’s standard character mark, as the
latter is not limited to any particular depiction. The rights associated with a standard
character mark reside in the wording and not in any particular display. In re RSI
Sys., LLC, 88 USPQ2d 1445, 1448 (TTAB 2008); In re Pollio Dairy Prods. Corp., 8
USPQ2d 2012, 2015 (TTAB 1988). We must consider Registrant’s standard character

TSDR 32. This evidence does not demonstrate that consumers understand Registrant’s mark
FDR to refer to the former President with respect to Registrant’s identified services. “[A]n
applicant’s or registrant’s intended interpretation of the mark is not necessarily the same as
the consumer’s perception of it.” In re Yale Sportswear Corp., 88 USPQ2d 1121, 1125 (TTAB
2008); see also Interpayment Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1465 (TTAB
2003) (“In short, it does not matter what applicant’s intentions were in creating its mark or
what its characterization of its mark is.”).
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mark “regardless of font style, size, or color” Citigroup Inc. v. Capital City Bank Grp.
Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011), including iterations
displaying the mark in the same font, size and layout as the term FDR appears in
Applicant’s composite mark. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186
(TTAB 2018).
When viewed in their entireties, we find the marks to be similar in all respects.
This DuPont factor supports a finding of a likelihood of confusion.
II. Conclusion
Because the marks are similar, the services are in part identical and the goods
identified in the application are inherently related to those services and, therefore,
are offered in some of the same channels of trade to some of the same classes of
consumers, we find that Applicant’s mark for “beers” and “taproom services” is likely
to cause confusion with the registered mark FDR for, inter alia, “bar services.”

Decision: The refusal to register Applicant’s mark is affirmed in
both International Classes.