Campari Mexico, S.A. de C.V.v.Grant Toland, Alexander Prenta and Russ Bennett

Trademark Trial and Appeal Board

Aug 31, 2020

91250805 (T.T.A.B. Aug. 31, 2020)

Hearing: August 25, 2020 Mailed: August 31, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Campari Mexico, S.A. de C.V.
v.
Grant Toland, Alexander Prenta and Russ Bennett
_____

Opposition No. 91250805
_____

Joel R. Feldman of Greenberg Traurig LLP for Campari Mexico, S.A. de C.V.

Sandy Lipkin of Law Offices of Sandy Lipkin for Grant Toland, Alexander Prenta and
Russ Bennett.
_____

Before Peter, Deputy Under Secretary of Commerce for Intellectual Property and
Deputy Director of the United States Patent and Trademark Office, and Cataldo and
English, Administrative Trademark Judges.1

Opinion by Cataldo, Administrative Trademark Judge:

Applicants, Grant Toland, Alexander Prenta and Russ Bennett, applied for
registration on the Principal Register of the mark EIDOLON, in standard characters,

1 “The Trademark Trial and Appeal Board shall include the Director, Deputy Director of the
United States Patent and Trademark Office, the Commissioner for Patents, the
Commissioner for Trademarks, and administrative trademark judges....” Trademark Act
§ 17(b), 15 U.S.C. § 1067(b).
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
Opposition No. 91250805

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identifying “beer,” in International Class 32 and “spirits, excluding distilled blue
agave liquor and mezcal; wine,” in International Class 33.2
Opposer, Campari Mexico, S.A. de C.V., has opposed registration of Applicants’
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
priority and likelihood of confusion3 with its registered mark ESPOLON, issued on
the Principal Register in standard characters, identifying “alcoholic beverages except
beers,” in International Class 33. The registration includes the following translation
statement: “The English translation of ‘ESPOLON’ in the mark is ‘spur.’”4
Applicants, in their answer, made the following admissions:
 Opposer is the owner of its pleaded Registration No. 3955741, and that
registration is valid and subsisting and owned by Opposer;5

2 Application Serial No. 88361857 was filed on March 28, 2019 pursuant to Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), as to both classes of goods, based upon Applicants’ claim
of a bona fide intent to use the mark in commerce. The identification of Class 33 goods was
amended in accordance with the parties’ January 28, 2020 stipulation, discussed below.
3 1 TTABVUE.
Citations in this decision are to the TTABVUE docket entry number and, where applicable,
the electronic page number where the document or testimony appears. Because the Board
primarily uses TTABVUE in reviewing evidence, the Board prefers that citations to non-
confidential parts of the record include the TTABVUE docket entry number and the
TTABVUE page number. For material or testimony that has been designated confidential
and which does not appear on TTABVUE, the TTABVUE docket entry number where such
material or testimony is located should be included in any citation. See Turdin v. Trilobite,
Ltd., 109 USPQ2d 1473, 1476 n.6 (TTAB 2014).
4 Reg. No. 3955741 issued on May 3, 2011. Section 8 affidavit accepted; Section 15 affidavit
acknowledged. (Section 9 reminder mailed May 3, 2020). 1 TTABVUE 8-11.
5 4 TTABVUE 2-3.
Opposition No. 91250805

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 Opposer’s rights in its ESPOLON mark predate the filing date of
Applicants’ involved application;6 and
 The goods identified in International Class 33 of Applicants’ involved
application “i.e., spirits; wine, overlap with or are closely related” to the
goods identified in Opposer’s pleaded registration.7
Applicants otherwise denied the salient allegations in the notice of opposition.8
The parties agreed to conduct this proceeding via Accelerated Case Resolution
(ACR)9 and, pursuant thereto, filed procedural stipulations, a stipulation of
undisputed facts, and the above-noted stipulation to amend the identification of Class
33 goods in the involved application.10 We note that regardless of an ACR stipulation,

6 4 TTABVUE 4.
7 4 TTABVUE 4.
8 4 TTABVUE 2-6. Applicants attached a definition of “eidolon” and screenshots from
Opposer’s website as exhibits to their Answer to the Notice of Opposition. With the exception
of a registration pleaded by an opposer in an opposition or a petitioner in a petition to cancel,
an exhibit to a pleading is not evidence on behalf of the party to whose pleading the exhibit
is attached unless identified and introduced in evidence as an exhibit during the period for
taking testimony. Trademark Rule 2.122(c), 37 C.F.R. § 2.122(c); see also TRADEMARK TRIAL
AND APPEAL BOARD MANUAL OF PROCEDURE (TBMP) (2020) §317. Accordingly, these
exhibits are not part of the record. We note, in any event, that the parties timely submitted
substantially similar evidence during their assigned testimony periods.
9 ACR can take a number of different forms, including the procedure adopted here, which is
akin to summary judgment but allows the parties to receive a prompt determination of the
claims and defenses in their case without the uncertainty and delay typically presented by
standard summary judgment practice. To take advantage of ACR, the parties must stipulate
that, in lieu of trial, the Board can resolve any material issues of fact. (9 TTABVUE 3.)
Chanel, Inc. v. Makarczyk, 106 USPQ2d 1774, 1776 (TTAB 2013). After the briefs are filed,
the Board will expedite final determination of the case endeavoring to issue a final decision
on the merits within fifty days following the completion of briefing and an oral hearing, if
any. Id. See also TBMP §§ 528.05(a)(2) and 705.
10 9 TTABVUE. We commend the parties for utilizing ACR and the efficiencies available
thereunder. See TBMP §§ 528 and 705, and authorities cited therein.
Opposition No. 91250805

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Opposer, as the party in the position of plaintiff in this proceeding, bears the burden
of proof, requiring Opposer to prove its case by a preponderance of the evidence. B&B
Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 113 USPQ2d 2045, 2049 (2015)
(“The party opposing registration bears the burden of proof, see §2.116(b), and if that
burden cannot be met, the opposed mark must be registered, see 15 U.S C. §1063(b).”);
Centroamericana, S.A. v. Cerveceria India, Inc., 892 F.2d 1021, 13 USPQ2d 1307,
1311 (Fed. Cir. 1989) (plaintiff’s burden is to establish the case by a preponderance
of the evidence). In accordance with their stipulation, both parties filed ACR briefs,
and Opposer filed a rebuttal ACR brief. The parties submitted their ACR evidence
five days prior to their respective briefs in accordance with their stipulation.11 In
addition, the parties presented arguments before this panel of the TTAB in an oral
hearing held on August 25, 2020.
I. The Record and ACR Stipulation
The record includes the pleadings and, by operation of Trademark Rule 2.122(b),
37 C.F.R. § 2.122(b), Applicants’ application file. Opposer submitted with its Notice
of Opposition a copy of its pleaded Reg. No. 3955741, retrieved from the USPTO’s
Trademark Status & Document Retrieval (TSDR).12
In addition, Opposer submitted the following ACR evidence:

11 9 TTABVUE 4.
12 1 TTABVUE 8-11.Opposer submitted a copy of its pleaded registration with its Notice of
Opposition. An opposer or petitioner may introduce a pleaded registration into the record by
attaching to its pleading a copy thereof obtained from the USPTO’s electronic database
records. Trademark Rule 2.122(d), 37 C.F.R. § 2.122(d). See also TBMP §§ 317,
704.03(b)(1)(A) and 704.05(a) (2020) and authorities cited therein.

Opposition No. 91250805

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 Screenshots from Opposer’s Espolon website discussing the history,
commercial impression, trade channels and marketing of its ESPOLON-
branded tequila (Exhibits 1-6).13

 Screenshots from Opposer’s Campari Group website discussing the
background and history of Opposer’s ESPOLON-branded tequila as well as
a press kit therefor (Exhibits 7-8).14

 Screenshots from Opposer’s Twitter, Facebook and YouTube pages showing
the marketing, commercial impression, consumer recognition and
commercial strength of its ESPOLON-branded tequila (Exhibits 9-11).15

 Screenshots from third-party websites discussing consumer recognition and
commercial strength of Opposer’s ESPOLON-branded tequila (Exhibits 12-
15).16

 Screenshots from Applicants’ Facebook page showing the nature of
Applicants’ goods (Exhibit 16).17

 Screenshots from third-party websites displaying the parties’ marks
(Exhibits 17-18).18

 Screenshots from third-party websites displaying goods similar to those
offered by the parties and their trade channels (Exhibits 19-27).19

 Copies of articles from the Westlaw searchable database discussing media
coverage, background and history of Opposer’s ESPOLON-branded tequila
and the nature of the parties’ goods (Exhibits 28-39).20

Applicants submitted the following evidence:
 Printed copies of coexisting third-party registrations owned by different
entities for GLEN-formative marks identifying scotch, whisky, and other

13 12 TTABVUE 9-39.
14 12 TTABVUE 40-45.
15 12 TTABVUE 46-64.
16 12 TTABVUE 65-94.
17 12 TTABVUE 95-106.
18 12 TTABVUE 107-112.
19 12 TTABVUE 113-157.
20 12 TTABVUE 158-194.
Opposition No. 91250805

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alcoholic beverages, retrieved from the USPTO’s Trademark Electronic
Search System (TESS) (Exhibits 1-9).21

Opposer submitted the following rebuttal evidence:
 Screenshots from third-party websites discussing the meaning of “glen” as
it pertains to scotch and whisky (Exhibits 40-41).22

 Screenshots from online dictionaries and other reference works showing the
meaning of the terms “eidolon” and “epsilon” and the proper pronunciation
of those terms (Exhibits 42-47, 52).23

 Screenshots from third-party websites discussing the symbolism of
roosters, particularly in Mexican culture (Exhibits 48-51).24

We will refer below to the facts enumerated in the parties’ “Stipulation of
Undisputed Facts”25 as they pertain to the issues under consideration herein.
II. Entitlement to a Statutory Cause of Action26
To establish entitlement to a statutory cause of action under Section 13 of the
Trademark Act, 15 U.S.C. § 1053, a plaintiff must demonstrate a real interest in the
proceeding and a reasonable belief of damage. Australian Therapeutic Supplies Pty.
Ltd. v. Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 at *3 (Fed. Cir. 2020);

21 14 TTABVUE 6-25.
22 16 TTABVUE 7-32, 48-52.
23 16 TTABVUE 13-32.
24 16 TTABVUE 33-47.
25 9 TTABVUE 5-12.
26 Our decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Mindful of the Supreme
Court’s direction in Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-
26 (2014), we now refer to this inquiry as entitlement to a statutory cause of action. Despite
the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting
Sections 13 and 14 remain equally applicable.

Opposition No. 91250805

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see also Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d
1058 (Fed. Cir. 2014); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356,
101 USPQ2d 1713, 1727 (Fed. Cir. 2012); Ritchie v. Simpson, 170 F.3d 1092, 50
USPQ2d 1023, 1025 (Fed. Cir. 1999).
Opposer’s entitlement to a statutory cause of action in this proceeding is
established by its live pleaded registration, which the record shows to be valid and
subsisting, and owned by Opposer.27 Cunningham v. Laser Golf Corp., 222 F.3d 943,
55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Otter Prods. LLC v. BaseOneLabs LLC, 105
USPQ2d 1252, 1254 (TTAB 2012). In addition, the parties stipulated to the facts
underlying Opposer’s entitlement to a statutory cause of action.28
III. Priority
Because Opposer’s pleaded registration is of record, priority is not an issue with
respect to Opposer’s mark for the goods identified in that registration. 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)). The
parties further stipulated to the facts underlying Opposer’s pr iority of use.29
IV. 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 the likelihood

27 1 TTABVUE 8-11.
28 9 TTABVUE 5.
29 9 TTABVUE 5.

Opposition No. 91250805

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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, 113 USPQ2d at 2049; 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
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)).
Opposition No. 91250805

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A. The nature and similarity or dissimilarity of the goods, the
established, likely-to-continue trade channels, and the classes of
purchasers.

We now consider the second and third DuPont factors, the similarity or
dissimilarity of the parties’ goods and the parties’ established, likely-to-continue
trade channels.
The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration,” Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1159
(Fed. Cir. 2014); Hewlett-Packard Co. v. Packard Press Inc., 281 F.3d 1261, 62
USPQ2d 1001, 1004 (Fed. Cir. 2002); Octocom Sys., Inc. v. Hous. Comput. Servs. Inc.,
918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990).
Opposer’s goods in its pleaded registration are identified as “alcoholic beverages
except beers.” Applicants’ Class 33 goods are identified as “spirits, excluding distilled
blue agave liquor and mescal; wine.” As identified, the parties’ goods are legally
identical inasmuch as Opposer’s broadly identified “alcoholic beverages” subsume
and encompass Applicants’ more narrowly identified “spirits” that specifically
exclude “blue agave liquor and mescal” and Applicants’ “wine,” which is also an
alcoholic beverage. As noted above, in their answer to the notice of opposition
Applicants “acknowledge that the class 33 goods identified in their application, i.e.,
spirits; wine, overlap with or are closely related to [Opposer’s] ESPOLON-branded
goods, namely alcohol beverages.”30 Further, the parties have stipulated that

30 4 TTABVUE 4.
Opposition No. 91250805

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“Applicants’ amended identification of goods in U.S. Application Serial No. 88361857,
‘spirits, excluding distilled blue agave liquor and mescal,’ overlaps with Opposer’s
identification of goods in U.S. Trademark Reg. No. 3955741, ‘alcoholic beverages
except beers.’”31
Notwithstanding the admission in their answer and the parties’ stipulation,
Applicants argue in their brief:
Opposer’s registrations are for alcoholic beverages, except beers.
Applicants’ goods are for [sic] beer, wine and spirits, excluding distilled
blue agave liquor and mezcal. All of the evidence provided shows that
while Opposer has registrations for alcoholic beverages, except beers,
there is no evidence of the mark in use for anything but tequila, which
is associated with Mexico and is specifically excluded by Applicants’
amendment to the goods.32

Applicants’ argument is unpersuasive. With respect to the similarity of the
parties’ goods, we must compare the goods identified in the opposed application to
those identified in Opposer’s pleaded registration. Hewlett-Packard Co. v. Packard
Press, Inc., 62 USPQ2d at 1004. Applicants’ argument seeks to impose limitations
upon Opposer’s goods that are not reflected in their identification, and cannot be
entertained absent a counterclaim to cancel or restrict Opposer’s pleaded
registration. See Trademark Rule 2.106(b)(3), 37 C.F.R. § 2.106(b)(3). See also TBMP
§ 313.01 and authorities cited therein. In the event Applicants believed Opposer’s
identification of goods was overly broad, their remedy lie in a counterclaim to modify
the pleaded registration to limit the recited goods. Trademark Act § 18, 15 U.S.C.

31 9 TTABVE 8.
32 Applicant’s brief; 15 TTABVUE 10.
Opposition No. 91250805

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§ 1068; Trademark Rule 2.111(b), 37 C.F.R. § 2.111(b). See also TBMP § 309.03(d)
and authorities cited therein. Inasmuch as Applicants did not counterclaim to cancel
or restrict Opposer’s pleaded registration, their arguments seeking to limit Opposer’s
goods will be given no further consideration.
Based upon the face of their identification, confirmed by the admission in
Applicants’ answer and the parties’ stipulation, we find that Applicants’ Class 33
goods are legally identical to the goods identified in Opposer’s pleaded registration.
With regard to Applicants’ goods identified in Class 32, namely, “beer” we are not
concerned that Opposer’s goods specifically exclude beer. See Anheuser-Busch, LLC
v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1827 (TTAB 2015) (“[B]ecause
Applicant’s goods explicitly exclude beer, its goods and Opposer’s do not actually
overlap.”). To support a finding of likelihood of confusion, it is not necessary that the
goods be identical or even competitive. The goods need only be “related in some
manner or … the circumstances surrounding their marketing are such that they could
give rise to the mistaken belief that they emanate from the same source.” Coach
Servs., 101 USPQ2d at 1722 (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715,
1724 (TTAB 2007)). The “question is whether, under all the circumstances, consumers
encountering the goods sold under these marks would mistakenly believe that they
share or are affiliated with or sponsored by a common source.” Anheuser-Busch, LLC,
115 USPQ2d at 1827.
Opposition No. 91250805

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Opposer introduced into the record screenshots from the following beverage
retailers engaged in the online and retail store distribution and delivery of various
beers, wines and spirits, including tequila and mescal:
 drizly.com – providing home delivery of wine, beer, including under that
heading hard seltzer and hard cider, and spirits, including Opposer’s
tequila;33 and
 totalwine.com – offering through its website and physical store locations
retail distribution of beer, wine and spirits, including Opposer’s tequila.34
This evidence demonstrates that at least these third parties offer both beer and
the alcoholic beverages identified in Opposer’s pleaded registration under a common
house mark. In addition, Applicants discuss the production of various alcoholic
beverages on their Facebook page, explaining how the same ingredients can be used
to create wine, spirits and beer:
Yesterday we mentioned a necessary mash in order to take grain and
produce a wash with fermentable sugars. Grain is used in making grain
alcohol and whiskey, but there are many other sugar sources. Here we
have some caramelized sugar and molasses for a stout, but the same
ingredients can be used to create a rum wash. Fruit would be used to
create wines that when distilled become brandy. Potatoes have been
used to make vodka...the combinations are endless.35

Applicants also provide on their social media page educational posts on various
distilled spirits and reviews of beers.36 Further evidence in the form of articles from

33 12 TTABVUE 113-139.
34 12 TTABVUE 140-149.
35 12 TTABVUE 105.
36 12 TTABVUE 95-106.
Opposition No. 91250805

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general circulation publications list reviews of drinking establishments, some of
which offer cocktails made of beer and distilled spirits, including “the Raspberry
Tootsie Pop (a stout with a splash of raspberry framboise), ensuring 11.5 ounces of
goodness for just $5-6.”37 These articles also suggest and review drinking
establishments offering beer and wine as well as distilled spirits.38
We find, however, that the record evidence is tenuous with regard to establishing
the relatedness of Opposer’s alcoholic beverages and Applicant’s beer. Clearly, there
are distinctions between these alcoholic beverages. Opposer places great reliance
upon decisional law from this tribunal and our reviewing courts finding beer related
to other alcoholic beverages. See, e.g., In re Chatam Int’l, 71 USPQ2d at 1947-48
(finding tequila and beer related); In re Majestic Distilling Co., 65 USPQ2d 1201,
1207 (Fed. Cir. 2003) (“The Board found, on the basis of substantial evidence…that
malt liquor and tequila are related as alcoholic goods sold through the same trade
channels to many of the same consumers...”); Anheuser-Busch, 115 USPQ2d at 1827-
28 (testimony and substantial evidence of record, led the Board to “conclude in this
case that beer and other alcoholic beverages, including wine, are related, and that
their purchasers and channels of trade overlap.”). Those decisions clearly were
grounded in the evidentiary records presented therein, which appear to be more
extensive than the record in the case presently before us. Certainly there is no per se
rule that different types of alcoholic beverages are related, and reliance upon prior

37 12 TTABVUE 173.
38 12 TTABVUE 108, 183.
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decisional law is not a substitute for presenting an evidentiary record to support the
relatedness of beer and alcoholic beverages.
The evidentiary showing in this case falls somewhat short of establishing that
consumers are likely to believe that beer and other alcoholic beverages emanate from
a common source. Accordingly, we find that Opposer has failed to establish that
Applicants’ Class 32 goods are related to Opposer’s goods. As discussed above,
Applicants’ Class 33 goods are legally identical to Opposer’s goods.
The third DuPont factor concerns “[t]he similarity or dissimilarity of established,
likely-to-continue trade channels.” Stone Lion, 110 USPQ2d at 1161 (quoting DuPont,
177 USPQ at 567). At a minimum, the “spirits, excluding distilled blue agave liquor
and mescal” identified in the involved application and the “alcoholic beverages except
beer” identified in Opposer’s pleaded registration are legally identical. We must
therefore presume that the channels of trade and classes of purchasers for these goods
are the same. See Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801
(Fed. Cir. 2018); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir.
2012) (legally identical goods are presumed to travel in same channels of trade to
same class of purchasers); 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).
With regard to Applicants’ “beer,” both parties may use social media and the
Internet to advertise or provide their goods. However, this alone is not sufficient to
find that the trade channels overlap in a manner that creates a likelihood of
Opposition No. 91250805

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confusion. See In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1087 (Fed.
Cir. 2014) (“Advertising on the Internet is ubiquitous and ‘proves little, if anything,
about the likelihood that consumers will confuse similar marks used on such goods
or services.”). As to the classes of consumers, there may be some degree of overlap to
the extent consumers of beer are also consumers of alcoholic beverages. While we may
assume that certain of Applicants’ customers will at some point purchase or drink
alcoholic beverages other than beer, and that certain of Opposer’s customers will at
some point purchase or drink beer, this is not a basis upon which to find that the
channels of trade or classes of consumers are necessarily the same. Coach Servs., 101
USPQ2d at 1723.
In view thereof, the DuPont factors regarding the legal identity of the Class 33
goods, channels of trade, and classes of purchasers strongly favor a finding of a
likelihood of confusion. The DuPont factors regarding the relatedness of Applicants’
Class 32 goods to Opposer’s goods, channels of trade and classes of consumers favors
a finding of no likelihood of confusion.
B. The strength of Opposer’s ESPOLON mark.

In determining the strength of a mark, we consider both its inherent or conceptual
strength based on the nature of the mark itself and its commercial strength, based
on the marketplace recognition value of the mark. See In re Chippendales USA, Inc.,
622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is
measured both by its conceptual strength (distinctiveness) and its marketplace
strength (secondary meaning).”); Top Tobacco, L.P. v. North Atlantic Operating Co.,
Opposition No. 91250805

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Inc., 101 USPQ2d 1163, 1171-72 (TTAB 2011) (the strength of a mark is determined
by assessing its inherent strength and its commercial strength); Tea Bd. of India v.
Republic of Tea Inc., 80 USPQ2d 1881, 1899 (TTAB 2006). Market strength is the
extent to which the relevant public recognizes a mark as denoting a single source. Id.
For purposes of analysis of likelihood of confusion, a mark’s renown “var ies along a
spectrum from very strong to very weak.” Joseph Phelps Vineyards, LLC v. Fairmont
Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (internal
quotations omitted). The proper standard is the mark’s “renown within a specific
product market,” id., and “is determined from the viewpoint of consumers of like
products,” id. at 1735, and not from the viewpoint of the general public.
1. Inherent or Conceptual Strength of ESPOLON
“In order to determine the conceptual strength of the cited mark, we evaluate its
intrinsic nature, that is, where it lies along the generic-descriptive-suggestive-
arbitrary (or fanciful) continuum of words.” In re Davia, 110 USPQ2d 1810, 1815
(TTAB 2014).
Opposer’s ESPOLON mark in its pleaded registration is inherently distinctive as
evidenced by its registration on the Principal Register without a claim of acquired
distinctiveness under Section 2(f) of the Trademark Act. Tea Bd. of India, 80 USPQ2d
at 1889. Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), provides that a
certificate of registration on the Principal Register shall be prima facie evidence of
the validity of the registration, of Opposer’s ownership of the mark and its exclusive
right to use the mark in connection with the goods identified in the certificate.
Opposition No. 91250805

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Inasmuch as Applicants have not counterclaimed to cancel Opposer’s pleaded
registration, the validity of Opposer’s registration remains unchallenged.
The ESPOLON mark appears to be arbitrary as applied to Opposer’s goods. The
parties have stipulated as follows:39
“Espolón” is a Spanish word that does not appear in English-language
dictionaries and translates to “spur” in English;

A “spur” is a pointed, rigid growth on the inner leg of a rooster; and

Opposer incorporates images of roosters in its branding for ESPOLON-
branded tequila.

There is no evidence of record to support a finding that ESPOLON or its translation
as the spur on the inner leg of a rooster has a particular significance in connection
with alcoholic beverages. Further, there is no record evidence of the extent to which
consumers of Opposer’s goods are aware of the meaning of ESPOLON,
notwithstanding Opposer’s utilization of rooster imagery in its branding.40
In addition, “evidence of third-party registrations [for the same or similar goods
or services] is relevant to ‘show the sense in which a mark is used in ordinary
parlance,’ ... that is, some segment that is common to both parties’ marks may have
‘a normally understood and well-recognized descriptive or suggestive meaning,
leading to the conclusion that that segment is relatively weak.’” Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millenium Sports, S.L.U., 797

39 9 TTABVUE 12.
40 We note, in that regard, that while Opposer may utilize roosters and other imagery in
connection with the branding, packaging and advertisements for its goods, Opposer’s pleaded
mark consists solely of the term ESPOLON in standard characters without any imagery or
other wording or designs.
Opposition No. 91250805

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F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (quoting Juice Generation, Inc.
v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1675 (Fed. Cir. 2015) (the
extent of third-party use or registrations may indicate that a term carries a
suggestive or descriptive connotation and is weak for that reason)); see also In re I-
Coat Co., LLC, 126 USPQ2d 1730, 1735 (TTAB 2018) (third-party registrations can
be used to demonstrate that a term may have a commonly accepted meaning); Top
Tobacco LP v. N. Atl. Operating Co., 101 USPQ2d 1163, 1173 (TTAB 2011) (third-
party registrations indicate term CLASSIC has suggestive meaning as applied to
tobacco products).
The parties have stipulated as follows:
EIDOLON and ESPOLON are the only live applied-for or registered
marks in International Classes 32 or 33 beginning with the letter E and
ending with the letters OLON.41

Applicant introduced copies of nine third-party registrations owned by different
entities, printed from the USPTO’s TESS database for GLEN-formative marks
applied to scotch, whiskey and a variety of other alcoholic beverages.42 These
registrations tend to show that third parties have registered marks including the
term GLEN for various alcoholic beverages. None of these third-party registrations
contain the term ESPOLON. Further, there is no evidence that GLEN and ESPOLON
share a common meaning. To the contrary, evidence of record establishes that GLEN

41 9 TTABVUE 6.
42 14 TTABVUE 6-25.
Opposition No. 91250805

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is a Gaelic term meaning “valley.”43 As a result, these terms are quite dissimilar and
Applicants’ evidence has very limited, if any, probative value in our consideration of
the strength of Opposer’s ESPOLON mark. Cf. In re Thor Tech Inc., 90 USPQ2d 1634,
1639 (TTAB 2009) (third-party registrations relating to goods different from and
unrelated to the goods at issue “cannot be indicative of descriptive or suggestive
connotations”).
On this record, we find Opposer’s inherently distinctive ESPOLON mark to be
arbitrary as applied to the goods identified thereby.
2. Commercial Strength of Opposer’s ESPOLON Mark
Commercial strength is the extent to which the relevant public recognizes a mark
as denoting a single source. Tea Bd. of India, 80 USPQ2d at 1899. We consider the
extent of commercial strength or weakness in the marketplace under the fifth and
sixth DuPont factors, “fame of the prior mark (sales, advertising, length of use)” and
“the number and nature of similar marks in use on similar goods.” DuPont, 177 USPQ
at 567. The fifth DuPont factor (fame) examines the extent to which the public
perceives the mark as indicating a single source of origin. Conversely, the sixth factor,
“the number and nature of similar marks in use on similar goods,” mitigates against
a mark’s potential recognition by considering whether, because of widespread third-
party use of similar marks in the marketplace, “customers have been educated to
distinguish between different such marks on the bases of minute distinctions.” Palm

43 16 TTABVUE 6-12.
Opposition No. 91250805

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Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1694 (Fed. Cir. 2005).
Commercial strength may be measured “by the volume of sales and advertising
expenditures of the goods traveling under the mark, and by the length of time those
indicia of commercial awareness have been evident.” Couch/Braunsdorf Affinity, Inc.
v. 12 Interactive, LLC, 110 USPQ2d 1458, 1476 (TTAB 2014). It is considered from
the perspective of “the class of customers and potential customers” of the relevant
goods, in this case purchasers and potential purchasers of alcoholic beverages. Palm
Bay, 73 USPQ2d at 1695 (The relevant consuming public consists of the “class of
customers and potential customers of a product or service, not the general public”);
see also Joseph Phelps, 122 USPQ2d at 1734 (focusing on “the class of customers and
potential customers of a product or service, and not the general public.”).
The parties have stipulated to the facts underlying the following:44
A third party has obtained certificate of label approvals (COLAs) for
EPSILON branded wines;

Opposer’s ESPOLON-branded tequilas have won Gold, Silver and
Bronze medals at various spirits competitions;

Opposer’s ESPOLON-branded tequila is commercially successful; and

Opposer’s ESPOLON brand is commercially strong and entitled to a
broad scope of protection.

Opposer further introduced evidence of its presence on social media and
consumer-generated reviews of its ESPOLON tequila on YouTube45 as well as articles

44 9 TTABVUE 6-9.
45 12 TTABVUE 55-56, 59-63.
Opposition No. 91250805

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retrieved from the Westlaw database from third-party publications such as Palm
Beach Post, Chicago Tribune and Houston Chronicle discussing Opposer’s
ESPOLON-branded tequila.46
On this record, Opposer’s ESPOLON mark is subject to a single third-party use of
an arguably related mark, EPSILON, in connection with wine. However, the record
is silent with regard to the extent to which EPSILON-branded wines are marketed
in the United States. The evidence of media exposure, industry recognition and
marketing efforts for alcoholic beverages under Opposer’s ESPOLON mark point to
a degree of commercial recognition and popularity of its ESPOLON-branded tequila.
As discussed above, Opposer’s ESPOLON mark is inherently distinctive, and
appears to be arbitrary in connection with the goods identified thereby. Opposer has
achieved some commercial success and media recognition for its goods under the
ESPOLON mark and Applicants have stipulated to the underlying facts that
“Opposer’s ESPOLON brand is commercially strong and entitled to a broad scope of
protection.” Considering both inherent and commercial strength, we find Opposer’s
ESPOLON mark, as applied to alcoholic beverages, is a strong mark and entitled to
a broad scope of protection on the spectrum of “very strong to very weak.” Joseph
Phelps, 122 USPQ2d at 1734 (quoting In re Coors Brewing Co., 343 F.3d 1340, 68
USPQ2d 1059, 1063 (Fed. Cir. 2003)); Tao Licensing, LLC v. Bender Consulting Ltd.,
125 USPQ2d 1043, 1059 (TTAB 2017) (“The commercial strength of Petitioner’s TAO
mark outweighs any conceptual weakness” found to exist in that case).

46 12 TTABVUE 158-194.
Opposition No. 91250805

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C. 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, 110
USPQ2d at 1812; accord Krim-Ko Corp. v. Coca-Cola 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). “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 (quoting Coach Servs., 101 USPQ2d at 1721).
Opposer’s mark is ESPOLON in standard characters. Applicants’ mark is
EIDOLON in standard characters. With regard to appearance, the parties have
stipulated as follows:47
EIDOLON and ESPOLON are each seven letters;

EIDOLON and ESPOLON begin with the letter E; and

EIDOLON and ESPOLON each end with the letters OLON.

The marks are similar in appearance in that each contains the same number of
letters, begins with the letter “E” and ends with “OLON.” They differ to the extent

47 9 TTABVUE 6.
Opposition No. 91250805

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that Applicants’ mark begins with “EID” and Opposer’s begins with “ESP.” The marks
otherwise are similar in structure, consisting of three syllables with identical letters
at the beginning and identical strings of letters at the end.
With regard to sound, the parties have stipulated as follows:48
“ESPOLÓN” is correctly pronounced “ehs-poh-LOHN”;

“ESPOLON” is commonly pronounced “EHS-poh-luhn” in the United
States; and

“EIDOLON” is pronounced “ai-DOH-luhn.”

As noted above, each mark consists of three syllables and the final syllable is nearly
identical when spoken. The first two syllables are somewhat different in sound.
Nonetheless, there is no “correct” pronunciation for a trademark. In re Teradata
Corp., 223 USPQ 361, 362 (TTAB 1984) (“as we have said many times, there is no
‘correct’ pronunciation of a trademark”). Consumers may not pronounce either mark
as intended, even if they recognize it as a known word.
Turning to meaning, the parties have stipulated as follows:49
“Espolón” is a Spanish word that does not appear in English-language
dictionaries and translates to “spur” in English.

A “spur” is a pointed, rigid growth on the inner leg of a rooster ; and

“Eidolon” is a word with a Greek origin appearing in English-language
dictionaries meaning “an image or representation of an idea; an
idealized person or thing; a specter, phantom, ghost, or elusive entity.”50

48 9 TTABVUE 12.
49 9 TTABVUE 12.
50 See also Opposer’s rebuttal evidence; 15 TTABVUE 13-28.
Opposition No. 91250805

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Opposer argues
Here, neither of the marks at issue are common English words –
“eidolon” is an obscure now-English word derived from Greek literature
and “espolòn” is a Spanish word.51

The words “espolòn” and “eidolon” are so obscure to English speakers
that their translation and definition, respectively, will not be commonly
known. Accordingly, the disparate meanings of “espolòn” and “eidolon”
will not mitigate the confusion caused by overlapping sight, sound, and
commercial impression.52

Applicants agree that “both marks are not English word[s] and are therefore not
immediately likely to be translated in the minds of English speakers.”53 The parties
agree that to the extent the meaning of the marks are known to consumers, they are
dissimilar.54
We also agree. The record is silent regarding the extent to which ESPOLON is a
widely recognized word in Spanish.55 More importantly, we must consider the
consumers for both parties’ goods to be consumers of alcoholic beverages in the United
States, including English speakers who have no knowledge of Spanish. Similarly,
there is no evidence regarding the extent to which consumers of the parties’ goods
will recognize EIDOLON as a known word with a recognized meaning. Thus, we
cannot ascertain whether the relevant consumers will recognize the dissimilar terms
comprising these marks as words or view them as coined terms.

51 13 TTABVUE 6.
52 13 TTABVUE 7.
53 15 TTABVUE 9.
54 13 TTABVUE 7; 15 TTABVUE 9.
55 As noted above, the parties have stipulated that Espolón is not an English-language term.
9 TTABVUE 12.
Opposition No. 91250805

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We further note that the parties have stipulated to Opposer’s ownership of three
design marks featuring images of skeletons and/or roosters, as well as its use of four
approved labels incorporating these images.56 The following example, consisting of a
label approved for use by Opposer for its goods under the ESPOLON mark, is
illustrative.

Opposer argues
Three of these labels depict Guadalupe and Rosarita [figures from
Mexican folklore] as idealized persons representing the ideals of
bravery, sacrifice, and independence. All four of these labels depict
Ramón the Rooster as an idealized animal representing the ideal of
national pride. Accordingly, this commercial impression of Campari
Mexico’s [ESPOLON] brand overwhelmingly overlaps with both “an
image or representation of an idea” and “and idealized person or
thing.”57

In fact, Campari Mexico’s social media has fully embraced death,
including ghosts, as a prevailing theme. Accordingly, this commercial
impression of Campari Mexico’s [ESPOLON] brand unquestionably
overlaps the death imagery of “specter[s], phantom[s], ghost[s], or
elusive entit[ies].”58

56 9 TTABVUE 9-12.
57 13 TTABVUE 8.
58 13 TTABVUE 9.
Opposition No. 91250805

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Opposer’s marketing materials, similar in appearance and theme to the label
displayed above, convey images of skeletons, roosters and Day of the Dead imagery.59
In response, Applicants argue:
Opposer’s general marketplace impression uses Day of the Dead
Imagery that is associated with Mexico where tequila originates and
where roosters are a common thematic presence, as are cowboys. While
Day of the Dead celebrations are associated with Mexican culture and
involve the celebration of passed-on ancestors, i.e., spirits, it is a stretch
that this sort of spirit is what springs to mind with the definition of
phantoms and spirits which connotates [sic] more of a mirage than a
passed-on ancestor. As such, the meaning of the two marks are
markedly distinct.60

In reply, Opposer argues:
Although ESPOLON means rooster spur, roosters are strongly
associated with the spiritual world. For example, in Chinese folklore,
roosters are said to be able to exorcise evil spirits. Likewise, in Christian
tradition, the rooster is a symbol of Christ, in particular light and
resurrection. And in Mexico, there are many superstitions surrounding
roosters, including that a black rooster is an omen of death. It follows,
therefore, that the commercial impression of roosters (and their
distinctive spurs) significantly overlaps with the commercial impression
of ghosts and phantoms.61

Opposer’s evidence further supports the significance of roosters in Mexican and other
cultures.62
While trade dress may provide evidence regarding the commercial impression
engendered by the mark, “distinction in trade dress cannot weigh against likelihood
of confusion with respect to the registration of a simple word mark… The reason is

59 12 TTABVUE 9-39; 48-57.
60 15 TTABVUE 10.
61 17 TTABVUE 7.
62 16 TTABVUE 33-47.
Opposition No. 91250805

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that such dress might well be changed at any time; only the word mark itself is to be
registered.” Kimberly Clark Corp. v. H. Douglas Enters., Ltd., 774 F.2d 1144, 1147,
227 USPQ 541, 543 (Fed. Cir. 1985). See also Vornado, Inc. v. Breuer Elec. Mfg. Co.,
390 F.2d 724, 156 USPQ 340, 343 (CCPA 1968). Further, it is not clear whether
consumers in the United States, particularly those who do not speak Spanish or are
unfamiliar with Mexican history or folklore, will perceive the intended meaning of
Opposer’s ESPOLON mark, even on Opposer’s labels. “[W]e must look to the likely
consumer perception of the mark in connection with the identified goods, rather than
applicant’s [or opposer’s] intended connotation.” UMG Recordings, Inc. v. Mattel, Inc.,
100 USPQ2d 1868, 1886 (TTAB 2011). We find that the meaning of the marks
ESPOLON and EIDOLON are somewhat different, even taking into account
Opposer’s trade dress.
Nonetheless, similarity in any one of the elements of sound, appearance, meaning,
or commercial impression is sufficient to support a determination of likelihood of
confusion. See Krim-Ko Corp. v. Coca-Cola, 156 USPQ at 526 (“It is sufficient if the
similarity in either form, spelling or sound alone is likely to cause confusion”) ; In re
White Swan Ltd., 8 USPQ2d 1534, 1535 (TTAB 1988) (“In appropriate cases, a finding
of similarity as to any one factor (sight, sound or meaning) alone ‘may be sufficient to
support a holding that the marks are confusingly similar’”) (citations omitted)).
Therefore, even if the marks had different meanings, it would not necessarily mean
there was no likelihood of confusion.
Opposition No. 91250805

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The parties’ marks are more similar than dissimilar in appearance and sound,
somewhat different in connotation and, overall, convey commercial impressions that
are more similar than dissimilar. In view thereof, the DuPont factor regarding the
similarity of the marks favors a finding of a likelihood of confusion.
D. Conditions under which sales are made, that is, “impulse” vs. careful,
sophisticated purchasing.

This DuPont factor examines the conditions under which, and to whom, sales are
made. Purchaser sophistication may tend to minimize likelihood of confusion.
Conversely, impulse purchases of inexpensive items may tend to have the opposite
effect.
Applicants argue in their brief:
Applicants intend to make high-end products that are to be sold to
discriminating purveyors of alcohol and as such, the goods are to be
marketed to connoisseurs who will be made aware of the pronunciation
and meaning of the word. Due to these conditions, there is no likelihood
of confusion likely in the eyes off [sic] the mark to which Applicants’
goods will be offered.63

Applicants’ arguments are unpersuasive. As identified, the parties’ alcoholic
beverages or spirits, beer and wine are not limited in any manner as to their
purchasers, conditions of sale or price. We therefore must presume that both parties’
potables are available at all price points to all consumers, including ordinary
consumers who may purchase alcohol on impulse or otherwise not exercise a great
deal of care in their purchasing decisions, in addition to more discerning purchasers.
See Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 56 USPQ2d 1351,

63 15 TTABVUE 11.
Opposition No. 91250805

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1357 (Fed. Cir. 2000) (must focus on identifications, regardless of any actual
marketplace evidence of “the particular channels of trade, or the class of purchasers
to which sales of the goods or services are directed”); In re Bay State Brewing Co.,
Inc., 117 USPQ2d 1958, 1960 (TTAB 2016); see also Stone Lion, 110 USPQ2d at 1163-
64 (recognizing Board precedent requiring consideration of the “least sophisticated
consumer in the class”).
In addition, we must presume that the parties’ goods include beer, wine and
alcoholic beverages or spirits available at modest prices that may be subject to casual
purchase.64 “When products are relatively low-priced and subject to impulse buying,
the risk of likelihood of confusion is increased because purchasers of such products
are held to a lesser standard of purchasing care.” Recot Inc. v. M.C. Becton, 214 F.3d
1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000) (citations omitted). The conditions of
sale and nature of the prospective consumers therefore favor finding a likelihood of
confusion.
E. Actual confusion
The seventh DuPont factor is the “nature and extent of any actual confusion, while
the eighth DuPont factor considers the “length of time during and conditions under
which there has been concurrent use without evidence of actual confusion.” DuPont,
177 USPQ at 567.

64 Evidence of record indicates that, at time of trial, Opposer’s tequilas are available at $22-
$26 per bottle. 12 TTABVUE 92, 116, 147. Applicants’ goods are not yet available for
purchase. The record also includes evidence of alcoholic beverages for sale at relatively low
price points, e.g. wine for $4.89, vodka and vermouth for $ 9.99, tequila for $10.99, rum for
$8.99 and beer for $5. 12 TTABVUE 115, 125-126, 130-131 and 135-139.
Opposition No. 91250805

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In its decision on remand from the Federal Circuit’s decision in In re Guild Mortg.
Co., 129 USPQ2d 1160, the Board recently held that the eighth DuPont factor
“requires us to look at actual market conditions, to the extent there is evidence of
such conditions of record.” In re Guild Mortg., 2020 USPQ2d 10279, *15 (TTAB 2020).
Evidence of actual confusion “is too important to be established by means of an
inference, unsupported by corroborating evidence.” Toys “R” Us, Inc. v. Lamps R Us,
219 USPQ 340, 346 (TTAB 1983). We note, however, that in the present case, the
parties have stipulated that Applicants have not used their applied-for EIDOLON
mark in commerce for any goods.65
Thus, the extent to which there has been an opportunity for actual confusion to
occur, if any, appears to be highly limited. DuPont, 177 USPQ at 567. Accordingly,
the seventh and eighth DuPont factors are neutral.66
F. Applicants’ intent in adopting their mark.

Under the thirteenth DuPont factor, evidence of an applicant’s bad faith adoption
of its mark is relevant to our likelihood of confusion analysis. Edom Labs., Inc. v.
Lichter, 102 USPQ2d 1546, 1553 (TTAB 2012); L.C. Licensing Inc. v. Cary Berman,
86 USPQ2d 1883, 1891 (TTAB 2008) (bad faith is strong evidence that confusion is
likely, as such an inference is drawn from the imitator’s expectation of confusion).
Establishing bad faith requires a showing, by a preponderance of the evidence, that

65 9 TTABVUE 5.
66 We note nonetheless that the test under Section 2(d) is not actual confusion but likelihood
of confusion. It is not necessary to show instances of actual confusion to establish likelihood
of confusion. Herbko Int’l. v. Kappa Books, 64 USPQ2d at 1380; Weiss Assocs., Inc. v. HRL
Assocs., Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1843 (Fed. Cir. 1990).
Opposition No. 91250805

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the applicant intentionally sought to trade on the goodwill or reputation associated
with an opposer’s mark. See J & J Snack Foods Corp. v. McDonald’s Corp., 18
USPQ2d 1889, 1891 (Fed. Cir. 1991) (“Whether there is evidence of intent to trade on
the goodwill of another is a factor to be considered, but the absence of such evidence
does not avoid a ruling of likelihood of confusion.”); Tea Bd. of India, 80 USPQ2d at
1902.
The parties have stipulated that “Applicants were not aware of ESPOLON tequila
at the time they filed” their application for the mark at issue herein.67 There
otherwise is no evidence of record that Applicants adopted their EIDOLON mark in
bad faith.
Accordingly, this DuPont factor is neutral.
G. Summary
Because the marks are similar, the goods are legally identical in Class 33 and
must be presumed to be offered in the same channels of trade to the same classes of
consumers and may be subject to impulse purchase, we find that the applied-for mark
used in connection with Applicants’ recited Class 33 goods is likely to cause confusion
with Opposer’s previously used and registered mark. We find on this record that
Opposer’s ESPOLON mark is entitled to a broad scope of protection. We further note
that, “[w]hen marks would appear on virtually identical ... [goods or] services, the
degree of similarity [of the marks] necessary to support a conclusion of likely
confusion declines.” See Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d

67 9 TTABVUE 12.
Opposition No. 91250805

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874, 23 USPQ2d 1698 (Fed. Cir. 1992). See also ECI Div. of E-Sys., Inc. v.
Environmental Commc’ns Inc., 207 USPQ 443, 449 (TTAB 1980).
However, because the evidence of record falls short of establishing that the goods
in Opposer’s pleaded registration are related to Applicants’ goods identified in Class
32, we find that consumers are not likely to experience confusion as to the source of
those goods, notwithstanding the similarities between the marks. See, e.g., Kellog Co.
v. Pack’ em Enters., Inc., 14 USPQ2d 1545 (TTAB 1990), aff’d 951 F.3d 330, 21
USPQ2d 1142 (Fed. Cir. 1991).
Decision: The notice of opposition is sustained on the ground of priority and
likelihood of confusion and registration to Applicants of their involved application is
refused as to the goods in International Class 33. The notice of opposition is dismissed
as to the goods in International Class 32.