Loggerhead Distillery, LLC

Trademark Trial and Appeal Board

Mar 24, 2021

88452674 (T.T.A.B. Mar. 24, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: March 24, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Loggerhead Distillery, LLC
_____

Serial Nos. 88441155 and 88452674
_____

Ashley V. Brewer of BrewerLong PLLC
for Loggerhead Distillery, LLC
Angela Duong, Trademark Examining Attorney, Law Office 104,
Zachary Cromer, Managing Attorney.
_____

Before Wellington, Heasley, and English
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Applicant, Loggerhead Distillery, LLC, seeks registration on the Principal
Register of the standard character mark LOGGERHEAD DISTILLERY and the
composite mark
.
Serial Nos. 88441155 and 88452674
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Both applications disclaim “DISTILLERY,” and both identify “distilled spirits” in
International Class 33 and “alcohol distillery services” in International Class 40.1
The Trademark Examining Attorney has refused registration of Applicant’s
marks under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground
of likelihood of confusion with the registered mark LOGGERHEAD LANDING (in
standard characters) for “bar and cocktail lounge services; café services; restaurant
services” in International Class 43.2
When the refusals were made final, Applicant appealed. On the Examining
Attorney’s motion, the appeals were consolidated.3 We affirm the refusals to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the

1 Application Serial No. 88441155, for the standard character mark, was filed on May 22,
2019, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s
claim of first use anywhere and in commerce since at least as early as April 26, 2019. The
application also covers “spirits distillery services” in International Class 40.

Application Serial No. 88452674, for the word and design mark, was filed on May 30, 2019,
under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), based on Applicant’s claim of
first use anywhere and in commerce since at least as early as April 26, 2019. The application
includes this description: “The mark consists of double concentric circle with two swords
crossed over the circles, a bare skull in the center of the circles, two stars each to the left and
right of the skull, the word LOGGERHEAD above the skull, and the word DISTILLERY in
the bottom center inside the circles, below the swords.” Color is not claimed as a feature of
the mark.

2 Registration No. 5318481, issued on the Principal Register on October 24, 2017.
3 7 TTABVUE. All references will be to the record and briefs in ex parte appeal 88441155,
unless otherwise stated. Page references to the application record are to the downloadable
.pdf version of the USPTO’s Trademark Status & Document Retrieval (TSDR) system.
References to the briefs, motions and orders on appeal are to the Board’s TTABVUE docket
system.
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goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d).
We base our determination of likelihood of confusion under Section 2(d) on an
analysis of all of the probative facts of record. See In re E. I. du Pont de Nemours &
Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”). In making our
determination, we have considered each DuPont factor for which there is evidence or
argument. In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1161-62 (Fed.
Cir. 2019); see Zheng 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.”)).
“The Lanham Act provides national protection of trademarks in order to secure
to the owner of the mark the goodwill of his business and to protect the ability of
consumers to distinguish among competing producers.” Park ‘N Fly, Inc. v. Dollar
Park & Fly, Inc., 469 U.S. 189, 224 USPQ 327, 331 (1985). Consistent with these
purposes, varying weights may be assigned to each DuPont factor depending on the
evidence presented in a particular case. See Citigroup Inc. v. Capital City Bank Grp.
Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992
F.2d 1204, 26 USPQ2d 1687, 1688 (Fed. Cir. 1993) (“the various evidentiary factors
may play more or less weighty roles in any particular determination”). “In any
likelihood of confusion analysis, two key considerations are the similarities between
the marks and the similarities between the goods and services.” In re Chatam Int’l
Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945 (Fed. Cir. 2004), cited in Ricardo Media
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Inc. v. Inventive Software, LLC, 2019 USPQ2d 311355, *5 (TTAB 2019).
A. Similarity or Dissimilarity and Nature of the Goods and Services,
and Channels of Trade

The second DuPont factor concerns the “similarity or dissimilarity and nature of
the goods or services as described in an application or registration…,” and the third
DuPont factor concerns the “similarity or dissimilarity of established, likely-to-
continue trade channels.” DuPont, 177 USPQ at 567.
Applicant’s goods and services are “distilled spirits” and “alcohol distillery
services; spirits distillery services,” while Registrant’s services are “bar and cocktail
lounge services; café services; restaurant services.” A proper comparison of these
goods and services “considers whether ‘the consuming public may perceive [the
respective goods or services…] as related enough to cause confusion about the source
or origin of the goods and services.’” In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d
1082, 1086 (Fed. Cir. 2014) (quoting Hewlett-Packard Co. v. Packard Press Inc., 281
F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002)) quoted in In re FabFitFun, Inc.,
127 USPQ2d 1670, 1672 (TTAB 2018). As the Board has declared:
It is not necessary that the … respective goods and services be competitive,
or even that they move in the same channels of trade to support a holding
of likelihood of confusion. It is sufficient that the respective goods and
services are related in some manner, or that the conditions and activities
surrounding the marketing of the goods and services are such that they
would or could be encountered by the same persons under circumstances
that could give rise to the mistaken belief that they originate from the same
source.

DeVivo v. Ortiz, 2020 USPQ2d 10153, *11 (TTAB 2020) (citing Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012)).
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Applicant states that while likelihood of confusion has often been found where
similar marks are used in connection with food or beverage products and restaurant
services, there is no per se rule that they are related.4 See Jacobs v. Int’l Multifoods
Corp., 668 F.2d 1234, 212 USPQ 641, 642 (CCPA 1982); In re Opus One, Inc., 60
USPQ2d 1812, 1813 (TTAB 2001). To show relatedness, the evidence or record must
show “something more” than the mere fact that Applicant’s distilled spirits could be
served at Registrant’s bar, cocktail lounge, café or restaurant, Applicant contends.5
See In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1064 (Fed. Cir. 2003)
(citing Jacobs v. Int’l Multifoods, 212 USPQ at 642).
We are cognizant of the “something more” precedent set by our primary reviewing
court in such cases as Coors and St. Helena Hospital. See generally In re Accelerate
s.a.l., 101 USPQ2d 2047, 2050 (TTAB 2012). “Something more” is required when we
compare goods with services, and the relatedness of those goods and services is not
evident, well-known or generally recognized. In re Country Oven, Inc., 2019 USPQ2d
443903, *12 (TTAB 2019) (citing In re St. Helena Hosp., 113 USPQ2d at 1087). In this
case, we must determine whether Applicant’s distillery services and the product of
those services, distilled spirits, are so similar in nature to Registrant’s services—
particularly its bar and cocktail lounge services—that they would be related in the

4 Applicant’s brief, 4 TTABVUE 4.
5 Applicant’s brief, 4 TTABVUE 5. Applicant purports to “incorporate by reference and
reiterate” the arguments it made during the course of prosecution. Applicant’s brief, 4
TTABVUE 2. However, the TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (TBMP) provides that “If an applicant, in its appeal brief, does not assert an
argument made during prosecution, it may be deemed waived by the Board.” TBMP
§ 1203.02(g) (2020). We accordingly address the arguments Applicant raises in its brief, in
conjunction with the evidence adduced during examination.
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mind of the consuming public. See Shen Mfg. Co. v. Ritz Hotel, Ltd., 393 F.3d 1238,
73 USPQ2d 1350, 1355-56 (Fed. Cir. 2004). “As we have long held, each case must be
decided on its own facts and the differences are often subtle ones.” In re St. Helena
Hosp., 113 USPQ2d at 1087.
In this case, the record shows that relatedness. The Examining Attorney
submitted website printouts from fifteen entities6 across the country showing that
the same entity commonly provides distillery services, distilled spirits, and
restaurant services under the same mark:
 Falls Church Distillery, Falls Church VA
 Mason Dixon Distillery & Restaurant, Gettysburg PA

 Breckenridge Distillery, Breckenridge CO
 Karrikin Spirits, Cincinnati OH
 Barrel 21 Distillery & Dining, State College PA
 Dogfish Head, Rehoboth, Milton DE
 Driftless Glen Distillery with restaurant, Baraboo WI
 High West Distillery, Park City Utah
 Lula Restaurant Distillery, New Orleans LA
 Founding Spirits/Founding Farmers, Washington DC
 Social Still, Lehigh Valley PA
 Saint Lawrence Spirits, Clayton NY
 Dells Distillery, Wisconsin Dells WI

6 August 12, 2019 Office Action at TSDR 7-35, March 5, 2020 Office Action at 12-55, 203-238.
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 Green Bay Distillery, Green Bay WI
 Treaty Oak, Dripping Springs TX
To this evidence, the Examining Attorney adds four articles discussing the
growing trend of restaurant-distilleries:
 “Trend: The Boom in Restaurant-Distilleries”: “Craft distilling is hugely
popular and enjoying unprecedented growth—there are 1,315 U.S. craft
distillers, according to the American Crafts Spirits Association. Pair this trend
with the popularity of gastropubs, and you’ve got the unique experience of
customers enjoying on-trend pub fare while taking pleasure in the drama of
seeing spirits made before their eyes, sampling it straight or enjoying a craft
cocktail.”7

 “Top Beverage Trends for 2016”: “A recent trend has emerged of restaurants
showcasing beverages produced either in-store or locally. One such example is
Denver’s Mile High Spirits, a private label micro-distillery, cocktail lounge and
tasting room.”8

 “D.C.’s first distillery-eatery taps into a growing trend”9

 “The 5 Best Distillery Restaurants in America” “Distilleries offer so much
more than tours these days, whether you want to stay the night or take in the
great outdoors. And now, more and more distilleries are opening on-site
restaurants, where they can showcase their spirits in cocktails and pair them
with local ingredients to make the experience even more immersive.” Reviews:
o Tuthill House at the Mill, Gardiner NY
o Star Hill Provisions, Loretto KY
o Service Bar, Columbus OH
o The Bar & Table, Chicago IL
o Cardinal Spirits Kitchen, Bloomington IN10

7 RDMag.com, March 5, 2020 Office Action at 56-61, 239-244.
8 Sirvo.com March 5, 2020 Office Action at 71-78, 254-261.
9 BDCNetwork.com March 5, 2020 Office Action at 68-70, 251-253.
10 Supercall.com, March 5, 2020 Office Action at 62-67, 245-250.
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In our view, this record evidence shows the relatedness of Applicant’s distillery
services and Registrant’s services. See Hewlett-Packard v. Packard Press, 62 USPQ2d
at 1004 (evidence that “a single company sells the goods and services of both parties,
if presented, is relevant to the relatedness analysis....”). “[I]t is settled that evidence
of third-party use of the same mark for an applicant’s identified goods and services
(or similar goods or services) on the one hand, and an opposer’s (or registrant’s)
identified goods and services (or similar goods and services) on the other, may
establish a relationship between those goods and services.” Ricardo Media v.
Inventive Software, 219 USPQ2d 311355, at *3 (citing In re Detroit Athletic Co., 903
F.3d 1297, 128 USPQ2d 1047, 1051 (Fed. Cir. 2018)).
Moreover, this evidence shows the requisite “something more” to establish that
distilled spirits are related to bar and cocktail lounge services, café services and
restaurant services in this case. Applicant argues that even if distillery/restaurant
combinations are increasing in prevalence, that is not enough for consumers to expect
such a combination.11 But the nationwide growth of distillery/restaurants, coupled
with the media articles publicizing the trend, suggest that consumers have been
exposed to the combination on a widespread basis. “[T]his industry trend and the
media attention it has received contribute to ‘something more’ showing that
consumers would be likely to perceive [Applicant’s] goods as related to [Registrant’s]
services.” Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1061-62

11 Applicant’s brief, 4 TTABVUE 7. See Applicant’s Feb. 11, 2020 Response to Office Action
comparing the estimated 1,835 distilleries extant in August 2018 with the estimated one
million plus restaurants. Estimates from ex. L, DistilleryTrail.com and ex. M,
Restaurant.org., Feb. 11, 2020 Response to Office Action at 18, 68-70.
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(TTAB 2017). On this evidentiary record, the relationship “is the opposite of obscure,
unknown, or generally unrecognized, [and] the relevant line of case law holds that
confusion may be likely to occur from the use of the same or similar marks for goods,
on the one hand, and for services involving those goods, on the other.” In re Country
Oven, 2019 USPQ2d 443903, at *13.12
Applicant argues that it cannot legally sell its distilled liquors at the distillery; it
can only offer free samples to assist customers in selecting a whole bottle for
purchase. Furthermore, it argues, Registrant, which owns and operates hotels, only
uses its LOGGERHEAD LANDING mark in connection with a hotel pool bar, so
customers would not expect distilled liquors to be sold in connection with a distillery
in either circumstance.13

12 The Examining Attorney cites a nonprecedential Board decision, In re Mauna Kea Rum
Co. LLC, 2019 BL 256416 (TTAB 2019), which found MAUNA KEA RUM COMPANY (“RUM
COMPANY” disclaimed) for “packaged spirits; packaged rum” confusingly similar to MAUNA
KEA and Design and MAUNA KEA BEACH HOTEL and Design (“BEACH HOTEL”
disclaimed) for inter alia “restaurant and hotel services.” Based on evidence similar to that
adduced in this case, the Board found the requisite “something more” establishing the
relatedness between packaged spirits and rum and restaurant services. Id. at *7. “Board
decisions which are not designated as precedent are not binding on the Board, but may be
cited and considered for whatever persuasive value they may hold.” In re Soc’y of Health &
Physical Educators, 127 USPQ2d 1584, 1587 n.7 (TTAB 2018), quoted in In re Alabama
Tourism Dep’t, 2020 USPQ2d 10485, at *6 n. 25 (TTAB 2020). Applicant attempts to
distinguish that decision, pointing out that disregarding the disclaimed words “RUM
COMPANY” and “BEACH HOTEL” renders the marks identical: MAUNA KEA. 4 TTABVUE
8. In the present case, Applicant argues, the differing suffixes “DISTILLERY” and
“LANDING” distinguish the marks. 4 TTABVUE 4. We find, however, that the cited
registration in this case identifies “bar and cocktail lounge services; café services; restaurant
services” that are even closer in nature to Applicant’s “distilled spirits” than those in the
Mauna Kea Rum case. And the marks’ suffixes do not dispel the similarity engendered by
their shared dominant component, LOGGERHEAD.
13 Applicant’s brief, 4 TTABVUE 6-7; see also affidavit of Colby Theisen, Applicant’s Manager,
Feb. 11, 2020 Response to Office Action, ex. O, at 72.
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However, there is no limitation in Applicant’s identification of goods and services
restricting how it sells its distilled spirits. And Registrant’s services are not limited
to hotel or poolside settings. “The relevant inquiry in an ex parte proceeding focuses
on the goods and services described in the application and registration, and not on
real-world conditions.” In re Detroit Athletic, 128 USPQ2d at 1052. They must be read
to encompass all goods and services of the type identified. Southwestern Mgmt., Inc.
v. Ocinomled, Ltd., 115 USPQ2d 1007, 1025 (TTAB 2015). “It is well established that
the Board may not read limitations into an unrestricted registration or application.”
In re Country Oven, 2019 USPQ2d 443903, at *5. So Applicant’s recourse to extrinsic
limitations is unavailing.
The respective goods and services can be expected to flow through the same or
similar channels of trade, as the website evidence demonstrates. See, e.g., In re Davey
Prods. Pty Ltd., 92 USPQ2d 1198, 1203-04 (TTAB 2009); In re Toshiba Med. Sys.
Corp., 91 USPQ2d 1266, 1272-73 (TTAB 2009) (website evidence shows same or
overlapping channels of trade and classes of customers). And they would flow to some
of the same classes of consumers—in this case, ordinary adult consumers of alcoholic
beverages. In re Bay State Brewing Co., Inc., 117 USPQ2d 1958, 1960 (TTAB 2016);
In re Inn at St. John’s, 126 USPQ2d 1742, 1747 (TTAB 2018), aff’d 777 Fed. Appx.
516 (Fed. Cir. 2019) (“Because the services at issue are “restaurant and bar services,”
the average customer is an ordinary consumer.”).
We find accordingly that the respective goods and services are similar and related
in nature, and that they would flow to the same classes of consumers via the same or
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similar channels of trade. The second and third DuPont factors therefore weigh in
favor of a likelihood of confusion.
B. Similarity or Dissimilarity of the Marks

Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 177 USPQ at
567; Stone Lion Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1160 (Fed. Cir. 2014); Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005). “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, 126 USPQ2d at 1746 (citing In re Davia,
110 USPQ2d 1810, 1812 (TTAB 2014)).
Again, Applicant’s marks are LOGGERHEAD DISTILLERY and ,
with “DISTILLERY” disclaimed in both. Registrant’s mark is LOGGERHEAD
LANDING.
Applicant contends that LOGGERHEAD LANDING “is actually suggestive of
the actual goods and services, because (i) [Registrant’s] business is a pool
bar/restaurant situated inside a beach resort, (ii) a Loggerhead is a sea turtle, which
(iii) ‘lands’ on beaches to lay its eggs. … Context suggests the naming was purposeful
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and intended to be suggestive, specifically to appeal to beachgoing tourists.”14 In
contrast, it argues, “[t]he word LOGGERHEAD in LOGGERHEAD DISTILLERY is
arbitrary, or at least more arbitrary than Registrant’s Mark, because Applicant’s
distillery is located inland, in the City of Sanford, Florida, and a distillery has nothing
inherently to do with Loggerhead turtles.”15 As we have seen, though, the cited
registration and the applications are broadly phrased, without geographic
restrictions, despite Applicant’s allusions to extrinsic evidence.
As the Examining Attorney correctly observes, the marks share the dominant,
word LOGGERHEAD. A “loggerhead” is “a very large chiefly carnivorous sea turtle
(Caretta caretta) of subtropical and temperate waters.”16 The word LOGGERHEAD
is displayed prominently as the first word in each mark. See Palm Bay Imps., 73
USPQ2d at 1692 (“Veuve” is the most prominent part of the mark VEUVE
CLICQUOT because “veuve” is the first word in the mark and the first word to appear
on the label); Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB
1988) (“[I]t is often the first part of a mark which is most likely to be impressed in the
mind of a purchaser and remembered”) cited in In re Mr. Recipe, LLC, 118 USPQ2d
1084, 1090 (TTAB 2016). Even though we compare the respective marks as a whole,
we may give their constituent terms more or less weight depending on their effect on
the overall commercial impression. In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d

14 Applicant’s brief, 4 TTABVUE 3.
15 Applicant’s brief, 4 TTABVUE 4.
16 Merriam-Webster.com, Feb. 11, 2020 Response to Office Action at 25.

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1944, 1948 (Fed. Cir. 2004). In this case, we find that the dominant, prominent,
shared component, LOGGERHEAD, carries the most weight, yielding a common
commercial impression.
The disclaimed word “DISTILLERY” does little to dispel the marks’ similarity. See
Citigroup Inc. v. Capital City, 98 USPQ2d at 1257 (“[W]hen a mark consists of two or
more words, some of which are disclaimed, the word not disclaimed is generally
regarded as the dominant or critical term.”) quoted in In re Aquitaine Wine USA,
LLC, 126 USPQ2d 1181, 1186 (TTAB 2018). Even though it disclaims
“DISTILLERY,” Applicant argues that LANDING is not disclaimed, so the differing
suffixes distinguish the marks: “Thus, we have LANDING, a relaxing place to land
and unwind vs. DISTILLERY, a manufacturing facility. The commercial impressions
are diametrical opposites….”17 As the aforementioned evidence shows, however,
distillery services, producing distilled spirits, are often combined with restaurant
services. So Applicant’s distinctions make little or no difference in the marks’
commercial impression. “[I]f the dominant portion of both marks is the same, then
confusion may be likely notwithstanding peripheral differences.” In re Denisi, 225
USPQ 624, 624 (TTAB 1985).
In the design mark, LOGGERHEAD appears in bold capital letters atop the logo,
reinforcing the loggerhead turtle skull image. LOGGERHEAD is far more prominent
than the disclaimed word DISTILLERY, which appears in much smaller size at the
bottom of the logo. See In re Coors Brewing Co., 68 USPQ2d at 1062 (where the “Blue

17 Applicant’s brief, 4 TTABVUE 4, 7-9.
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Moon Brewing Co.” appeared “at the bottom of the mark in significantly smaller font,
it was reasonable for the Board to find that those words do not significantly contribute
to distinguishing the two marks”) cited in In re I-Coat Co., LLC, 126 USPQ2d 1730,
1736 (TTAB 2018).
In such a design mark, “the words are normally given greater weight because they
would be used by consumers to request the products.” Joel Gott Wines LLC v.
Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1431 (TTAB 2013) (citing In re Viterra
Inc., 671 F. 3d 1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012) (“the verbal portion of
a word and design mark likely will be the dominant portion”). Distilled spirits are
“often ordered by name, in a bar or restaurant, or from a menu, where only the name
of the [beverage] will be used …. Many consumers ordering these goods from a
bartender or waiter/waitress will not have the opportunity to see a label when they
order the product. Further, if the [beverage] is served in a glass …, the consumer may
never see a label.” In re Bay State Brewing, 117 USPQ2d at 1961 (discussing beer
consumption).
The relevant consumers, moreover, would include ordinary adult consumers of
alcoholic beverages, who retain a general rather than a specific impression of the
marks’ sounds, and would naturally tend to shorten their pronunciation of
Applicant’s mark, asking a bartender or waiter for LOGGERHEAD. See, e.g., In re
Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (J. Rich,
concurring); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333
(TTAB 1992).
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Applicant argues that distilleries must place their name and address on container
labels, thereby negating consumer confusion.18 However, the Lanham Act does not
contemplate such an exception for alcoholic beverages. See, e.g., In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201 (Fed. Cir. 2003) (RED BULL for
tequila likely to be confused with RED BULL for malt liquor). It is unclear how
prominently the distillery’s name would be placed on its container labels, and since
Applicant’s name, “Loggerhead Distillery, LLC” is nearly identical to its standard
character mark, its addition cannot be expected to dispel the marks’ similarity.
Instead, given the aforementioned prevalence of distillery/restaurants, it would
imply, at best, an affiliation between Applicant and Registrant.
For these reasons, the marks are more similar than dissimilar, and the first
DuPont factor weighs in favor of finding a likelihood of confusion.
C. Consumer Care and Sophistication
Under the fourth DuPont factor, we consider “[t]he conditions under which and
buyers to whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 177 USPQ at 567. “Purchaser sophistication may tend to minimize likelihood
of confusion. Conversely, impulse purchases of inexpensive items may tend to have
the opposite effect.” Palm Bay Imps., 73 USPQ2d at 1695.
Applicant argues that its consumers “are shopping specifically for quality craft
distilled spirits vs. mass produced brands….”19 But since the subject applications and

18 Applicant’s brief, 4 TTABVUE 6.
19 Applicant’s brief, 4 TTABVUE 14.
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registration contain no restriction as to price or quality, there is no reason to infer
that the consumers of the alcoholic beverages will be particularly sophisticated,
discriminating, or careful in making their purchases. See Somerset Distilling Inc. v.
Speymalt Whisky Dist. Ltd., 14 USPQ2d 1539, 1542 (TTAB 1989); In re Bercut-
Vandervoort & Co., 229 USPQ 763, 765 (TTAB 1986).
The fourth DuPont factor is therefore neutral.
D. The Number and Nature of Similar Marks in Use on Similar
Goods and Services

Under the sixth DuPont factor, we consider “[t]he number and nature of similar
marks in use on similar goods [and services].” DuPont, 177 USPQ at 567.
Applicant argues that the word LOGGERHEAD is so commonly used that the
USPTO database is replete with registered marks with the word:
.20
Applicant maintains that the USPTO routinely registers marks sharing animal
names as long as they have other elements and consumers are so used to seeing
animal names such as TURTLE in brands that they look to other elements to

20 Feb. 11, 2020 Response to Office Action at 23-24, ex. P, 73-82.
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distinguish the brands’ sources.21
Applicant’s evidence consists of seven third-party registrations, not evidence of
use in the marketplace. As the Federal Circuit has stated, “evidence of third-party
use of similar marks on similar goods ‘can show that customers have been educated
to distinguish between different marks on the basis of minute distinctions.”’ 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) (quoting Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir.
2015)) (emphasis added). For example in Coors Brewing, “the applicant had
introduced evidence that there are more than 100 restaurants in the United States
whose names incorporate that term [Blue Moon].” In re Coors Brewing, 68 USPQ2d
at 1061 (dissent). But the existence of third-party registrations is not evidence of what
happens in the marketplace or that customers are familiar with the marks. AMF Inc.
v. Am. Leisure Prods., Inc., 474 F.2d 1403, 177 USPQ 268, 269 (CCPA 1973) quoted
in part in In re Inn at St. John’s, 126 USPQ2d at 1746.
For example, in Palm Bay Imports, where Palm Bay’s intent-to-use application for
the mark VEUVE ROYALE for sparkling wine was refused registration based on
opposer Veuve Clicquot’s registered VEUVE-formative marks for sparkling wine.
Palm Bay introduced evidence of at least five different third-party alcoholic beverage
marks that used the term VEUVE or a foreign equivalent. 73 USPQ2d at 1693. The
Federal Circuit, affirming the Board’s refusal, held that “The probative value of third-

21 Applicant’s brief, 4 TTABVUE 9-10, Feb. 11, 2020 Response to Office Action at 13, ex. D,
38-42.
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party trademarks depends entirely upon their usage. ... As this court has previously
recognized where the record includes no evidence about the extent of third-party uses
the probative value of this evidence is thus minimal.” Id. (quoting Han Beauty, Inc.
v. Alberto-Culver Co., 236 F.3d 1333, 57 USPQ2d 1557, 1561 (Fed. Cir. 2001)
(emphasis in original, punctuation omitted).
Applicant’s third-party registration evidence is even weaker. Six of Applicant’s
seven third-party marks carry little to no probative value because they are for
unrelated goods or services—such as hardware, real estate management, printing,
outdoor furniture—ranging far afield from the goods and services in this case. See
Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d
1686, 1693-94 (Fed. Cir. 2018) (the controlling inquiry under the sixth DuPont factor
is the extent of third-party marks in use on “similar” goods or services); In re Inn at
St. John’s, 126 USPQ2d at 1745 (unrelated third-party registrations of little or no
probative value). And the seventh registration is cancelled. Id. at 1746 (dead or
cancelled registrations have no probative value at all).
In sum, Applicant’s cited third-party registrations containing the term
LOGGERHEAD “do not diminish the distinctiveness of the cited mark or its
entitlement to protection against Applicant’s mark.” In re Information Builders Inc.,
2020 USPQ2d 10444, *8 (TTAB 2020).
The sixth DuPont factor is therefore neutral.
E. Actual Confusion

Under the seventh and eighth DuPont factors, we consider the nature and extent
Serial Nos. 88441155 and 88452674
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of any actual confusion, in light of the length of time and conditions under which
there has been contemporaneous use of the subject marks. DuPont, 177 USPQ at 567.
Applicant argues that “[t]here is no evidence of actual consumer confusion.”22 But
“While evidence of actual confusion may be considered in the DuPont analysis, a
showing of actual confusion is not necessary to establish a likelihood of confusion.” In
re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744 (Fed. Cir. 2017) (internal
punctuation omitted).
Moreover, “The fact that an applicant in an ex parte case is unaware of any
instances of actual confusion is generally entitled to little probative weight in the
likelihood of confusion analysis, inasmuch as the Board in such cases generally has
no way to know whether the registrant likewise is unaware of any instances of actual
confusion, nor is it usually possible to determine that there has been any significant
opportunity for actual confusion to have occurred.” In re Opus One Inc., 60 USPQ2d
1812, 1817 (TTAB 2001). The extent the respective marks’ use in the marketplace is
unknown. See Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1847
(Fed. Cir. 2000). And the marks have coexisted for only about two years, if Applicant’s
claim of first use is credited. See Primrose Ret. Cmtys., LLC v. Edward Rose Senior
Living, LLC, 122 USPQ2d 1030, 1039-40 (TTAB 2016) (three years’ contemporaneous
use not a meaningful opportunity for confusion to occur). So we are at a disadvantage
to gauge the opportunity for actual confusion to have occurred in the marketplace.

22 Applicant’s brief, 4 TTABVUE 14.
Serial Nos. 88441155 and 88452674
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For these reasons, we do not expect the Examining Attorney to present evidence
concerning actual confusion, vel non, see In re Pacer Tech., 338 F.3d 1348, 67 USPQ2d
1629, 1632 (Fed. Cir. 2003).
We regard the seventh and eighth DuPont factors as neutral.
II. Conclusion

When we consider the record and the relevant likelihood of confusion factors, and
all of the arguments relating thereto, we find that Applicant’s and Registrant’s marks
are more similar than dissimilar, that the respective goods and services are similar
and related in nature, that those goods and services would flow through the same or
similar channels of trade to some of the same classes of consumers, that these
consumers, including ordinary adult consumers of alcoholic beverages, could not be
expected to exercise more than an ordinary amount of care and sophistication in their
purchases, that there are no similar marks in use or registered for similar goods and
services that would weaken the strength of the cited registered mark, and that the
absence of evidence of actual confusion does not negate a likelihood of confusion. There
is therefore a likelihood of confusion under Section 2(d) of the Trademark Act. 15
U.S.C. § 1052(d).
Decision: The refusals to register Applicant’s marks are affirmed.