Square Peg Brewerks LLC

Trademark Trial and Appeal Board

Jan 28, 2022

88755013 (T.T.A.B. Jan. 28, 2022)

Mailed: January 28, 2022 UNITED STATES PATENT AND TRADEMARK OFFICE Trademark Trial and Appeal Board ---- In re Square Peg Brewerks LLC _____ Serial No. 88755013 _____ H. Michael Drumm, Trent E. Rinebarger, Marc C. Rietvelt and Ethan Larson of Drumm Law LLC for Square Peg Brewerks LLC. Anna C. Burdecki, Trademark Examining Attorney, Law Office 108, Kathryn E. Coward, Managing Attorney. _____ Before Adlin, Dunn and Allard, Administrative Trademark Judges. Opinion by Adlin, Administrative Trademark Judge: Applicant Square Peg Brewerks LLC seeks registration of SQUAREPEG BREWERKS, in standard characters (with “BREW WORKS” disclaimed), for “bar services featuring beer; taproom services; taproom services featuring beer brewed on premises” in International Class 43.1 The Examining Attorney refused registration under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so resembles the previously registered mark SQUARE PEG, in 1 Application Serial No. 88755013, filed January 10, 2020 under Section 1(a) of the Trademark Act, based on first use dates of June 2, 2017. This Opinion is Not a Precedent of the TTAB Serial No. 88755013 2 standard characters, for “wines” in International Class 33,2 that it is likely to cause confusion.3 After the refusal became final, Applicant appealed and filed a request for reconsideration which was denied. Applicant and the Examining Attorney filed briefs. I. Evidentiary Objections Applicant submitted third-party registrations during prosecution. October 6, 2020 Office Action response TSDR 17-55; May 13, 2021 Request for Reconsideration TSDR 14-52.4 Applicant then resubmitted some of these registrations with its Appeal Brief, along with additional third-party registrations not previously introduced. 8 TTABVUE 15-57.5 Applicant claims that the third-party registrations submitted for the first time with its Appeal Brief “correct” its submissions during prosecution, but in fact they are an attempt to supplement, rather than “correct” the prosecution record. Id. at 11 n.1. The problem, as the Examining Attorney points out in her objection to the newly-filed registrations, 10 TTABVUE 3-4, is that the record should be complete prior to filing an appeal. Trademark Rule 2.142(d). Accordingly, the 2 Registration No. 4828266, issued October 6, 2015; Section 8 Affidavit accepted and Section 15 Affidavit acknowledged. 3 The Examining Attorney withdrew the Section 2(d) refusal based on Registration No. 5337536. November 13, 2020 Office Action TSDR 4. 4 Citations to the application file are to USPTO’s Trademark Status & Document Retrieval (“TSDR”) online database, by page number, in the downloadable .pdf format. 5 Citations to the appeal record are to TTABVUE, the Board’s online docketing system. The number preceding TTABVUE corresponds to the docket entry number, and any numbers following TTABVUE refer to the page(s) of the docket entry where the cited materials appear. Serial No. 88755013 3 Examining Attorney’s objection to the newly-submitted third-party registrations is sustained, and only the timely-introduced evidence will be considered. Id. Similarly, the Examining Attorney’s objection to the website evidence Applicant submitted for the first time with its Appeal Brief, 8 TTABVUE 58-59, is sustained. We have not considered these materials.6 II. Likelihood of Confusion Our determination under Section 2(d) is based on an analysis of all of the probative evidence of record bearing on the likelihood of confusion. In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“DuPont”) (setting forth factors to be considered); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each DuPont factor about which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods and services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental inquiry 6 As the Examining Attorney points out, even if the list of third-party registrations Applicant submitted with its Appeal Brief, 8 TTABVUE 11-13, was timely, a mere list would not be sufficient to make third-party registrations of record. See In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1405 n.17 (TTAB 2018) (“[T]he list does not include enough information to be probative. The list includes only the serial number, registration number, mark, and status (live or dead) of the applications or registrations. Because the goods are not listed, we do not know whether the listed [applications or] registrations are relevant.”); see also Edom Labs. Inc. v. Licher, 102 USPQ2d 1546, 1550 (TTAB 2012). Serial No. 88755013 4 mandated by § 2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.”). A. The Marks The marks are highly similar “in their entireties as to appearance, sound, connotation and commercial impression.” Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting DuPont, 177 USPQ at 567). Indeed, Applicant’s mark is essentially the same as Registrant’s, but for adding the generic or at best descriptive (and disclaimed) term BREWERKS at the end. This distinction does not make a meaningful difference. In fact, the verb “brew” means “to prepare beer,” while “works” means “a place where industrial labor is carried out.” April 6, 2020 Office Action TSDR 28, 29. Thus, “brew works” (and Applicant’s variation of the term) means a place where beer is made, and, as shown in the third-party use examples below, served (such as in a taproom or tasting room): Serial No. 88755013 5 Id. at 30, 34. Applicant concedes that: (1) “the term ‘BREW’ is a widely known word and is an indication of the method through which beer is made,” 8 TTABVUE 11; and (2) the term BREWERKS is merely descriptive, October 6, 2020 Office Action response TSDR 14,7 as evidenced by its disclaimer of the term.8 Alcatraz Media Inc. 7 Specifically, in traversing the since-withdrawn refusal to register Applicant’s involved mark based on Registration No. 5337536, Applicant argued that BREWERKS is “a different novel spelling of the descriptive term ‘beer works,’” and that “it is highly likely that consumers would look past those words ….” October 6, 2020 Office Action response TSDR 14. 8 While Applicant misspells the term “works” in its mark, and combines “brew” and “werks” without a space between them, these minor alterations do not render the term non- descriptive. See e.g., Standard Paint Co. v. Trinidad Asphalt Co., 220 U.S. 446, 455 (1911) (“Bad orthography has not yet become so rare or so easily detected as to make a word the arbitrary sign of something else than its conventional meaning ….”); Nupla Corp. v. IXL Mfg. Co., 114 F.3d 191, 42 USPQ2d 1711, 1716 (Fed. Cir. 1997) (“Nupla’s mark [CUSH-N-GRIP], which is merely a misspelling of CUSHION-GRIP, is also generic as a matter of law”); In re Omaha Nat’l Corp., 819 F.2d 1117, 2 USPQ2d 1859 (Fed. Cir. 1987) (FIRSTIER merely descriptive of banking services); In re Quik-Print, 616 F.2d 523, 205 USPQ 505, 507 n.9 (CCPA 1980) (finding QUIK-PRINT merely descriptive of printing and copying services, stating “[t]here is no legally significant difference here between ‘quik’ and ‘quick.’”); In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009) (“applicant’s applied-for mark, URBANHOUZING in standard character form, will be immediately and directly perceived by consumers as the equivalent of the admittedly descriptive term URBAN HOUSING, rather than as including the separate word ZING”); In re Cox Enters. Inc., 82 USPQ2d 1040, 1043 (TTAB 2007) (“Applicant’s mark THEATL is simply a compressed version of the Serial No. 88755013 6 v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1762 (TTAB 2013), aff’d 565 Fed. Appx. 900 (Fed. Cir. 2014); Bass Pro Trademarks LLC v. Sportsman’s Warehouse Inc. 89 USPQ2d 1844, 1851 (TTAB 2008). Because BREWERKS is descriptive and disclaimed, it is entitled to less weight in our analysis. Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that the ‘descriptive component of a mark may be given little weight in reaching a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 752 (Fed. Cir. 1985)); In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997); In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009) (BINION’S, not disclaimed word ROADHOUSE, is dominant element of BINION’S ROADHOUSE); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is often “less significant in creating the mark’s commercial impression”). Thus, the dominant portion of Applicant’s involved mark is the term SQUAREPEG. The term SQUAREPEG is the dominant portion of Applicant’s mark for another reason - it comes first. In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1049 (Fed. Cir. 2018) (“The identity of the marks’ initial two words is particularly descriptive term THE ATL without a space between the two words. Without the space, THEATL is equivalent in sound, meaning and impression to THE ATL and is equally descriptive of applicant’s goods. We disagree with applicant that the single word creates a new meaning or a nonsensical expression or that it changes the commercial impression of the term in any significant way.”); In re A La Vieille Russie Inc., 60 USPQ2d 1895, 1897 n.2 (TTAB 2001) (“the compound term RUSSIANART is as merely descriptive as its constituent words, ‘Russian Art’”). Serial No. 88755013 7 significant because consumers typically notice those words first.”); 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 upon the mind of a purchaser and remembered”). Thus, SQUAREPEG, the dominant portion of Applicant’s mark, is virtually identical to Registrant’s mark. Indeed, for purposes of evaluating the likelihood of confusion, there is not a meaningful difference between SQUAREPEG written as one word as in Applicant’s mark, and SQUARE PEG written as two words as in Registrant’s mark. See e.g. Stockpot, Inc. v. Stock Pot Rest., Inc., 220 USPQ 52, 54 (TTAB 1983), aff’d, 737 F.2d 1576, 222 USPQ 665 (Fed. Cir. 1984) (finding STOCKPOT and STOCK POT confusingly similar); In re Best Western Family Steak House, Inc., 222 USPQ 827, 827 (TTAB 1984) (BEEFMASTER and BEEF MASTER found “practically identical”). When we consider the marks in their entireties, we find that the dominant portion of Applicant’s mark is phonetically identical to Registrant’s mark, and looks “practically identical” to Registrant’s mark. While the term BREWERKS in Applicant’s mark conveys the meaning and commercial impression of a brewery or taproom, and Registrant’s mark does not convey the same meaning or impression, at the same time Registrant’s mark does not convey a different meaning or impression than Applicant’s. In fact, consumers familiar with Applicant’s mark who encounter Registrant’s could perceive Registrant’s mark as simply a shortened version of Applicant’s mark which does not describe the type of goods or services provided. Serial No. 88755013 8 Alternatively, consumers familiar with Registrant’s mark who encounter Applicant’s could perceive Applicant’s mark as identifying an extension of Registrant’s brand into beer, or a brewery or taproom. In analogous circumstances, we have found that adding a merely descriptive term to a registered mark does not avoid confusion. See e.g. Coca-Cola Bottling Co. of Memphis, Tenn., Inc. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 188 USPQ 105 (CCPA 1975) (BENGAL for gin likely to be confused with BENGAL LANCER for club soda and other soft drinks); Joel Gott Wines, LLC v. Reboboth Von Gott, Inc., 107 USPQ2d 1424, 1433 (TTAB 2013) (“Purchasers of opposer’s GOTT and JOEL GOTT wines are likely to assume that applicant’s goods, sold under the mark GOTT LIGHT and design, are merely a line extension of goods emanating from opposer.”); In re Integrated Embedded, 120 USPQ2d 1504 (TTAB 2016) (BARR likely to be confused with BARR GROUP); Motion Picture Ass’n of Am., Inc. v. Respect Sportswear, Inc., 83 USPQ2d 1555 (RATED R SPORTSWEAR for clothing likely to be confused with RATED R for entertainment services); In re Denisi, 225 USPQ 624 (TTAB 1985) (PERRY’S PIZZA likely to be confused with PERRY’S). In short, the marks are quite similar, which weighs heavily in support of finding a likelihood of confusion. B. The Goods, Channels of Trade and Classes of Consumers The goods need not be identical or even competitive in order to find a likelihood of confusion. Rather, the question is whether the goods are marketed in a manner that “could give rise to the mistaken belief that they emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB Serial No. 88755013 9 2007)). See also Hewlett-Packard Co. v. Packard Press Inc., 227 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002) (“Even if the goods and services in question are not identical, the consuming public may perceive them as related enough to cause confusion about the source or origin of the goods and services.”); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and thus not related to, one another in kind, the same goods can be related in the mind of the consuming public as to the origin of the goods”); Kohler Co. v. Baldwin Hardware Corp., 82 USPQ2d 1100, 1109 (2007). Here, the Examining Attorney has established that goods such as those identified in the cited registration (wine) and services such as those identified in the involved application (bar and taproom services) are offered under the same marks, and travel in the same channels of trade to the same consumers. For example, CROWN VALLEY is a “Winery ∙ Brewery ∙ Distillery” which offers wine bearing CROWN VALLEY on the label, and bar services featuring beer and other beverages, as shown below: Serial No. 88755013 10 April 6, 2020 Office Action TSDR 12, 15, 16 (emphasis added). As shown above, this source of CROWN VALLEY wine also has “a 73’ rustic wooden bar sitting area to enjoy freshly brewed beverages, as well as an outdoor beer garden.” Id. at 16. Whereas CROWN VALLEY is a “Winery ∙ Brewery ∙ Distillery,” ROUND BARN is a “Winery ∙ Distillery ∙ Brewery.” Id. at 22. But, like Crown Valley, Round Barn operates “acres of vineyards,” and customers “can not only try our award-winning wines but also dabble in select brews in our Beer Barn …..” Id. at 22-27. Some third parties are just wineries/breweries without also being distilleries. For example, BARREL OAK winery also operates a “taphouse,” and as its website states: “Beers are now made and served at Barrel Oak,” and “you can enjoy a glass of wine and a mug of beer - all made here for you to enjoy,” as shown below: Serial No. 88755013 11 Id. at 19, 21 (emphasis added). Similarly, VON JAKOB Winery and Brewery offers VON JAKOB-branded beer and wine, including in its pub and on site brewery, and presumably in its bed and breakfast: November 13, 2020 Office Action TSDR 9-22. As the beer section of Von Jakob’s website states: “if you are having trouble choosing just one [beer], we offer flights so you can taste them all. Prost!” Id. at 20. Serial No. 88755013 12 As shown, each of these third parties offers wine bearing the same trademark as is used for their taproom/bar/pub services, which all serve beer. Additional examples of third-party marks used on both wine and bar services, including bar services featuring beer, include Mackinaw Trail Winery & Brewery, Schillingbridge Winery and Brewery and Fenton Winery & Brewery, as shown below: Id. at 23-41, 50-81 (emphasis added).9 9 We have not relied on additional evidence that many bars/taprooms which offer beer also offer wine, because it appears that the wines offered may be from a different source than the bar services. Serial No. 88755013 13 This third-party use evidence establishes a relationship between the goods and services. See In re Detroit Athletic, 128 USPQ2d at 1050 (crediting relatedness evidence showing that third parties use the same mark for the goods and services at issue because “[t]his evidence suggests that consumers are accustomed to seeing a single mark associated with a source that sells both”); Hewlett-Packard Co., 62 USPQ2d at 1004 (evidence that “a single company sells the goods and services of both parties, if presented, is relevant to a relatedness analysis”). Perhaps it should not be surprising that so many third parties produce and distribute wine on the one hand and offer bar services featuring beer on the other. Indeed, a VINE PAIR article entitled “Grape and Grain: Nine Winemakers That Are Also Brewing Craft Beer” recognizes this as a trend. Id. at 110-125. Most of the nine winemakers listed are not cited above, thus this article is additional evidence of wineries offering bar services featuring beer. The article indicates that increasingly “lines are being crossed, and so too are loyalties to any one beverage.” These trends are “breeding bi-curious imbibers and producers alike,” leading to “the budding popularity of the hybrid brewery-winery. Across the country, winemakers are becoming brewers, and brewers turning into vintners.” Id. at 111. A MISSOURI WINES article entitled “7 Multitasking MO Wineries That Also Brew Beer” corroborates the VINE PAIR assessment. It states: “Most wineries also serve beer, usually sourced from local breweries, and some even brew it themselves.” Id. at 146. The article goes on to list seven wineries/vineyards which also serve beer, only one of which is among the third parties mentioned above, thus further adding to the total number of third-party Serial No. 88755013 14 uses revealed by the record. Reston Limousine’s website even includes an article entitled “VA Wineries That Also Serve Beer or Cider,” aimed at those whose “drinking partners don’t drink wine - not a problem!” Id. at 129. See also id. at 34. We should stress that whether wineries/vineyards “source [beer] from local breweries” or “brew it themselves” is irrelevant for our purposes, because Applicant’s identification covers bar and taproom services “featuring beer,” without limiting the type of “beer” being offered, or its provenance. In fact, Applicant’s identification of services also includes “taproom services” without limitation to beer or any other specific beverage, and the record reveals that “taprooms” often offer alcoholic (and non-alcoholic) beverages besides beer. Moreover, the Examining Attorney introduced a number of use-based third-party registrations showing that the same marks are registered in connection with the types of goods Registrant offers (or similar goods) on the one hand, and the types of services Applicant offers (or similar services) on the other. These include: (Reg. No. 4387348) is registered for “wine” and “restaurant and bar services.”10 (Reg. No. 4951746) is registered for “red wine,” “bar services” and “taproom services.” THE CAJUN BUDDHA (Reg. No. 5023210) is registered for “wine” and “restaurant and bar services.” 10 As with Applicant’s identified “taproom services,” this registration’s identified “restaurant and bar services” is broad enough to encompass not just bar services featuring beer, but also bar services featuring other beverages. Serial No. 88755013 15 LOGIS DE LAFONT (Reg. No. 5007753) is registered for “wine” and “bar services.” A CRAFTED EXPERIENCE (Reg. No. 5159454) is registered for “wine” and “restaurant and bar services.” BEAT CULTURE (Reg. No. 5662013) is registered for “wine” and “taproom services featuring craft beer, wine, mead, cider.” PLEB URBAN WINERY (Reg. No. 5628619) is registered for “wine” and “taproom services.” (Reg. No. 5531596) is registered for “wine” and “bar and restaurant services.” (Reg. No. 6136808) is registered for “wines,” “bar services,” “brewpub services” and “taproom services.” BOX OFFICE BREWERY (Reg. No. 6008580) is registered for “wine” and “restaurant and bar services.” (Reg. No. 6120129) is registered for “wine” and “restaurant and bar services.” June 18, 2021 Denial of Request for Reconsideration TSDR 41-73. “Third-party registrations which cover a number of differing goods and/or services, and which are based on use in commerce, although not evidence that the marks shown therein are in use on a commercial scale or that the public is familiar with them, may nevertheless have some probative value to the extent that they may serve to suggest that such goods or services are of a type which may emanate from a single source.” In Serial No. 88755013 16 re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1998). This evidence supports and bolsters the third-party use evidence.11 The record also reveals that the goods and services travel in the same channels of trade to the same classes of consumers. Specifically, the record shows that wineries that produce and sell their own wine often also offer beer and other beverages in what are variously called “taprooms,” “bars” and “tasting rooms,” under the same mark.12 These factors also weigh in favor of finding a likelihood of confusion.13 11 Applicant’s focus on the international classes in which Applicant’s services and Registrant’s goods reside is misplaced. The classes are irrelevant. Jean Patou Inc. v. Theon Inc., 9 F.3d 971, 29 USPQ2d 1771, 1774 (Fed. Cir. 1993) (stating that classification is for the convenience of the USPTO and “wholly irrelevant to the issue of registrability under section 1052(d), which makes no reference to classification”); See also In re Detroit Athletic, 128 USPQ2d at 1051 (difference in classification “does not alter our conclusion”). 12 As shown in the Reston Limousine article and elsewhere, “drinking partners” with different beverage preferences may be a specific class of consumers for the goods and services at issue. That is, people who want to spend time together but have different tastes in beverages may choose a specific winery or taproom based on whether it serves beverages which satisfy each of the “drinking partners.” 13 Applicant argues (without supporting evidence) that “for a beer product to reach an out-of- state consumer, it is required to bear a federally approved label that must, among other requirements, convey the location where the particular product was bottled, further mitigating against consumer confusion.” 8 TTABVUE 8. Even if this argument was supported, it would be unavailing. Applicant has not applied to register its mark for beer; it has applied to register it for bar and taproom services. As the record reveals, bars and taprooms often serve beer out of kegs, and there is no evidence that taproom customers would be exposed to bottle labels, that they would read them if they were or that confusion would be “mitigated” if they did. There is no evidence whatsoever that “the location where the particular product was bottled” has anything to do with the likelihood of confusion between these marks that do not include geographic terms. In any event, as the Examining Attorney points out, Applicant seeks a geographically unrestricted registration, which if granted would confer Applicant with nationwide rights to use its mark for taprooms, just as the cited registration confers Registrant with the nationwide right to use its SQUARE PEG mark for wine, no matter where bottled. Serial No. 88755013 17 C. Applicant’s Third-Party Registration Evidence As indicated, Applicant introduced a number of third-party registrations, claiming that “[m]any marks have been registered for beer and wine that are only distinguished by the addition of an industry descriptive term.” 8 TTABVUE 11-13. Even if this were true, it would not be helpful here, because Applicant does not seek registration for beer. Rather, it seeks registration for bar and taproom services, and thus to be relevant the evidence would have to show that highly similar marks are currently registered14 to different sources for wine on the one hand and bar or taproom services on the other. There is no such evidence here. In any event, even if the third-party registration evidence showed that the USPTO has registered similar marks to different sources for the goods and services at issue in this case, the existence of such third-party registrations would not compel a specific result here. See, e.g., Real Foods Pty Ltd. v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1377 (Fed. Cir. 2018) (“these prior registrations do not compel registration of [Applicant’s] proposed mark[ ]”) (citing In re Cordua Rests., Inc., 823 F.3d 594, 600 (Fed. Cir. 2016) (“The [US]PTO is required to examine all trademark applications for compliance with each and every eligibility requirement, . . . even if the [US]PTO earlier mistakenly registered a similar or identical mark suffering the same defect.”)). As we recently stated in an analogous situation, to the extent that our decision here is inconsistent with any third-party registrations, “it is the decision 14 According to the Examining Attorney, some of the registrations upon which Applicant relies have been cancelled. Cancelled registrations are irrelevant. Black & Decker Corp. v. Emerson Elec. Co., 84 USPQ2d 1482, 1487 n.9 (TTAB 2007). Serial No. 88755013 18 required under the statute on the record before us.” In re Ala. Tourism Dept., 2020 USPQ2d 10485, *11 (TTAB 2020). III. Conclusion The marks are highly similar, the goods and services are related and the channels of trade and classes of consumers overlap. Confusion is likely. Decision: The refusal to register Applicant’s mark under Section 2(d) of the Trademark Act is affirmed.