Upslope LLC

Trademark Trial and Appeal Board

Jan 28, 2011

No. 77650402 (T.T.A.B. Jan. 28, 2011)

Mailed:
January 28, 2011

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Upslope LLC.
________

Serial No. 77650402
_______

Craig Neugeboren of Neugeboren O’Dowd PC, for Upslope LLC.

Robin S. Chosid-Brown, Trademark Examining Attorney, Law Office
102 (Karen M. Strzyz, Managing Attorney).
_______

Before Bucher, Cataldo, and Ritchie, Administrative Trademark
Judges.

Opinion by Ritchie, Administrative Trademark Judge:

Upslope, LLC (“applicant”) filed an application to register
the mark UPSLOPE BREWING COMPANY, in standard character format,
for services identified as “beer; beer, ale and lager,” in
International Class 32.1
The Trademark Examining Attorney refused registration of
applicant’s mark under Section 2(d) of the Trademark Act of
1946, 15 U.S.C. §1052(d), on the ground that applicant’s mark so

1 Serial No. 77650402, filed January 15, 2009, pursuant to Section 1(b)
of the Trademark Act, 15 U.S.C. §1051(b), alleging a bona fide intent
to use in commerce, and disclaiming the exclusive right to use the
term “BREWING COMPANY” apart from the mark as shown.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 77650402
2
resembles the registered mark UPSLOPE, also in standard
character format, for “wines” in International Class 33,2 that
when used on or in connection with applicant’s identified goods,
it is likely to cause confusion or mistake or to deceive.
Upon final refusal of registration, applicant filed a
timely appeal. Both applicant and the examining attorney filed
briefs. For the reasons discussed herein, the Board affirms the
refusal to register.
We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a
likelihood of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973); see also, In re
Majestic Distilling Company, Inc., 315 F.3d 1311, 65 USPQ2d
1201, 1203 (Fed. Cir. 2003). In any likelihood of confusion
analysis, two key considerations are the similarities between
the marks and the similarities between the goods or services.
See 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”). We discuss each of the du Pont factors as to which

2 Registration No. 3033867, issued December 27, 2005, under 1(a)of the
Trademark Act, claiming dates of first use and first use in commerce
on September 9, 2004.
Serial No. 77650402
3
applicant or the examining attorney submitted argument or
evidence.
The Marks
We consider and compare the appearance, sound, connotation
and commercial impression of the marks in their entireties. In
re E. I. du Pont De Nemours & Co., 177 USPQ at 567. The
question is not whether the marks can be distinguished when
subjected to a side-by-side comparison, but rather whether the
marks are sufficiently similar in their entireties that
confusion as to the source of the goods or services offered
under the respective marks is likely to result. The focus is on
the recollection of the average purchaser, who normally retains
a general rather than a specific impression of trademarks. In
re Jack B. Binion, 93 USPQ2d 1531 (TTAB 2009); Sealed Air Corp.
v. Scott Paper Co., 190 USPQ 106 (TTAB 1975).
The cited registration consists solely of the word UPSLOPE.
Applicant’s mark incorporates this word and adds the descriptive
and disclaimed term “BREWING COMPANY.” We find the word UPSLOPE
to be arbitrary for both the goods in the cited registration
(“wines”) and those in the application (“beer, ale and lager”).
We therefore find UPSLOPE to be the dominant term in both marks.
See In re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 750
(Fed. Cir. 1985) (descriptive or disclaimed matter is generally
considered a less dominant portion of a mark). Therefore, we
Serial No. 77650402
4
find that the similarities outweigh the differences of the marks
as to their sight, sound, connotation, and commercial
impression, and this du Pont factor weighs in favor of finding a
likelihood of consumer confusion.
The Goods and Channels of Trade

Next we consider the similarities or dissimilarities of the
goods. In doing so, we keep in mind that the test is not
whether consumers would be likely to confuse the goods but
rather would be likely to be confused as to their source. San
Fernando Electric Mfg. Co. v. JFD Electronics Components Corp.,
565 F.2d 683, 196 USPQ 1, 3 (CCPA 1977); Spoons Restaurants Inc.
v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff'd
unpublished, No. 92-1086 (Fed. Cir. June 5, 1992).
Applicant cited several cases for the point that alcoholic
beverages such as “beer” and “wines” are not per se related. Cf.
In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059 (Fed.
Cir. 2003) (requiring a showing of “something more” to find
likelihood of confusion between beer and restaurant services);
See also In re Opus One Inc., 60 USPQ2d. 1812, 1813 (TTAB 2001)
(finding restaurant services related to wine with identical mark
and "something more"). We agree that this is not an absolute
rule, and have accordingly considered the evidence in the record
in undertaking our analysis in this case.
Serial No. 77650402
5
To show the relatedness of the goods, the examining
attorney submitted into the record numerous copies of use-based,
third-party registrations identifying both “beer,” as identified
in the application and “wine” or “wines,” as identified in the
cited registration. These include, among others, Registrations
No. 1286155, 1560079, 1553878, 1736692, 2304424, 2219064, and
2341577. Copies of use-based, third-party registrations may
serve to suggest that the goods are of a type which may emanate
from a single source. See In re Albert Trostel & Sons Co., 29
USPQ2d 1783, 1785 (TTAB 1993).
The examining attorney also submitted Internet evidence
showing numerous third parties offering for sale both “beer” and
“wine” on their websites. This is further evidence that
consumers expect to find both “beer,” as identified by
applicant, and “wines,” as identified by the cited registration,
emanating from a common source.
Web excerpts include:
Gilly’s Craft Beer & Fine Wine: Upcoming Events: 7/25
Snoqualmie (Washington State) Wine Tasting 1-4pm; 8/7
Newcastle Beer Tasting. www.gillysbfw.com.

Cork 57 Beer & Wine: At Cork 57, we offer both new world
and old world wine treasures, as well as a large selection
of specialty beers. www.cork57.com.

MAIN STREET BEER & WINE: Welcome to the MAIN STREET BEER
AND WINE, Gaithersburg’s friendliest one-stop neighborhood
beer and wine store, conveniently located on Main Street in
the Kentlands. We offer good prices and a great selection
of Beer and Wine. www.mainstreetbeerandwine.com.
Serial No. 77650402
6

O’SHEA Brewing Company: Beer & Kegs; Kegerators; Home
Brewing; Wine Making. www.osheabrewing.com.

VINE PARK: Beer Making; Recipes; Brew Club; Wine Making:
Welcome to Vine Park: Vine Park is unique – the only brew-
it-yourself-on-the-premises in the Midwest. Since 1995,
Vine Park is still the Fun Place to Brew Your Own Beer &
Make Your Own Wines! www.vinepark.com.

Saugatuck Brewing Company gets small winemaker license, to
serve wine and hard cider: Wine will be flowing at the
Saugatuck Brewing Company starting Friday. www.mlive.com
May 1, 2009.

Accordingly, we find persuasive the evidence of record
showing the close relatedness of “beer” to “wines,” including
via use-based third-party registrations and Internet content.
This evidence is made even more compelling given the strong,
arbitrary nature of registrant’s mark and the high degree of
similarity between the respective marks.
In the absence of specific limitations in the registration,
we must presume that registrant’s goods will travel in all
normal and usual channels of trade and methods of distribution.
Squirtco v. Tomy Corporation, 697 F.2d 1038, 216 USPQ 937, 939
(Fed. Cir. 1983); see also In re Linkvest S.A., 24 USPQ2d 1716,
1716 (TTAB 1992) (because there are no limitations as to
channels of trade or classes of purchasers in either the
application or the cited registration, it is presumed that the
services in the registration and the application move in all
channels of trade normal for those services, and that the
Serial No. 77650402
7
services are available to all classes of purchasers for the
listed services). Since there are no limitations on the
channels of trade in applicant’s identification of goods either,
we must make the same presumption with regard to applicant’s
goods.
In other words, there is nothing that prevents applicant
from offering for sale its beer (once the goods are in use)
through the same channels of trade and to the same consumers who
purchase registrant’s wines, and vice-versa. Accordingly, we
find that these du Pont factors also weigh in favor of finding a
likelihood of consumer confusion.
Consumer Sophistication
Applicant urges us to consider consumer sophistication,
arguing that “due to the high price of UPSLOPE wines, the least
sophisticated consumer is still far more discerning than the
average beer consumer.” (Appl’s brief at 6). To the extent
applicant is attempting to use information from the record to
show that the registrant’s goods are expensive and that
therefore its consumers are sophisticated, that is not
particularly useful to our analysis. Rather, we are bound by
the parties’ respective descriptions of goods. Octocom Systems,
Inc. v. Houston Computers Services Inc., 918 F.2d 937, 16 USPQ2d
1783, 1787 (Fed. Cir. 1990) (“[t]he authority is legion that the
question of registrability of an applicant’s mark must be
Serial No. 77650402
8
decided on the basis of the identification of goods set forth in
the application regardless of what the record may reveal as to
the particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which the sales
of goods are directed.” [citations omitted]).
Indeed, the record shows glasses of wine being offered for
sale for as little as $5.50. see www.upstreambrewing.com. For
goods in this price range, consumers often make impulse
decisions, and may not stop to think about the difference
between the marks. In any event, as identified in the involved
application and registration, neither applicant’s nor
registrant’s goods are limited to expensive beers and wines that
would be purchased by discerning consumers after much
deliberation, and we will not consider such limitations in our
analysis herein. Accordingly, we deem this du Pont factor to
weigh in favor of a finding a likelihood of consumer confusion.
Conclusion
In summary we have carefully considered all of the evidence
of record pertaining to the du Pont likelihood of confusion
factors, as well as applicant’s arguments with respect thereto.
We conclude that there is a likelihood of confusion between
applicant’s UPSLOPE BREWING COMPANY mark for “beer; beer, ale
and lager” and the registered mark UPSLOPE for “wines.”
Decision: The refusal to register is affirmed.