Abnormal Company, Inc.

Trademark Trial and Appeal Board

Jan 25, 2021

86877406 (T.T.A.B. Jan. 25, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: January 25, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Abnormal Company, Inc.
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Serial No. 86877406
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Melissa W. Woo-Allen of Woo Allen Law LLP,
for Abnormal Company, Inc.
Justine N. Burke, Trademark Examining Attorney, Law Office 121,
Kevin Mittler, Managing Attorney.
_____

Before Taylor, Bergsman and Heasley,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Abnormal Company, Inc. (“Applicant”) seeks registration on the Principal
Register of the standard character mark ABNORMAL for goods identified as “beer”
in International Class 32.1

1 Application Serial No. 86877406 was filed on January 15, 2016, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based upon Applicant’s claim of first use of the mark
anywhere and in commerce since at least as early as January 15, 2012. The application
originally included goods in Class 33 that were not subject to the refusal. These goods were
divided from this application and resided in Application Serial No. 86981391, which has been
abandoned.
Serial No. 86877406
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The Trademark Examining Attorney has refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. § 1052(d), on the ground that it is likely
to be confused with the standard character mark in Registration No. 3853267, IT’S
NOT NORMAL, for “beer” in International Class 32.2
After the Trademark Examining Attorney made the refusal final, Applicant
appealed. We affirm the refusal to register.
I. Applicable Law
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
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on
an analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192
USPQ 24 (CCPA 1976). We discuss below these and other relevant factors. See In re
Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019) (Board
considers each DuPont factor for which there is evidence and argument).

2 Issued September 28, 2010; renewed.
Serial No. 86877406
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II. Similarity of the Goods, Channels of Trade, and Classes of
Consumers
Applicant’s identified beer is identical to the beer identified in the cited
registration. Because the goods are identical, we presume that the channels of trade
and classes of purchasers for those goods are also the same. See In re Viterra Inc., 671
F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no
evidence regarding channels of trade and classes of consumers, the Board was
entitled to rely on this legal presumption in determining likelihood of confusion).
To the extent Applicant contends that the respective consumers are mutually
exclusive purchasers of craft beer, neither Applicant’s nor Registrant’s identification
contain any trade channel or consumer limitations. We consider the goods as they are
described in the application and registration. Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys,
Inc. v. Houston Comput. Servs. Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir.
1990) (“The authority is legion that the question of registrability of an applicant’s
mark must be 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.”). Thus, we do not read limitations into the
identification of goods. In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744,
1748 (Fed. Cir. 2017); Squirtco v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940
(Fed. Cir. 1983) (“There is no specific limitation and nothing in the inherent nature
of Squirtco’s mark or goods that restricts the usage of SQUIRT for balloons to
Serial No. 86877406
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promotion of soft drinks. The Board, thus, improperly read limitations into the
registration”); In re Thor Tech, Inc., 90 USPQ2d 1634, 1638 (TTAB 2009) (“We have
no authority to read any restrictions or limitations into the registrant’s description of
goods.”). Therefore, we presume Applicant’s and Registrant’s beer include all types of
beer, including beer sold to purchasers of craft beer.
Accordingly, the DuPont factors concerning the similarity of the goods, channels
of trade and classes of consumers strongly favor a finding of likelihood of confusion.
III. Consumer Sophistication and Purchaser Care
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. Applicant opines that “consumers of craft beer are
incredibly particular about the brand of beer they drink” and states that both
“Applicant and Registrant are small breweries focused on their craft.” Applicant’s
brief, p. 9.3 Against that framework, Applicant argues:
Given the plethora of beer brands and breweries,
consumers of craft beer have carefully learned to
distinguish between these brands to pick their favorites at
a bar. No consumer of craft beer will confuse the
Registrant’s IT’S NOT NORMAL beer with Applicant’s
ABNORMAL beer. These consumers are far too observant
and familiar with the fact that there are numerous similar
names for beer and yet each is different and distinct.
Id.4

3 4 TTABVUE 10.
4 Id. See also Applicant’s November 1, 2016 Response at TSDR 42-45, which consists of a
Wikipedia entry listing American beer brands. We do not find this listing particularly
probative, as Applicant neither included evidence of use of those brands nor were any as
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We find this argument unavailing. As noted above, the respective identifications
list beer without limitation; that is, the identified beer is not limited to craft beer.
Accordingly, Applicant’s and Registrant’s goods are considered to include all types of
beer sold through normal channels of trade; their respective consumers encompass
the general public as well as the possibly more sophisticated connoisseur of craft beer
and we must make our determination based on the least sophisticated consumer. See
In re Bay State Brewing Co., 117 USPQ2d 1958, 1959 n.4 (TTAB 2016) (“[b]ecause
the respective identifications include ‘beer’ without any limit regarding a particular
price point, we must treat the goods as including inexpensive as well as more costly
beers, and therefore presume that purchasers for ‘beer’ include ordinary consumers
who may buy inexpensive beer on impulse.”) (citing Stone Lion Capital v. Lion Capital
110 USPQ2d at1163-64, (decision requires consideration of the “least sophisticated
consumer in the class”)). See also In re Sailerbrau Franz Sailer, 23 USPQ2d 1719,
1720 (TTAB 1992) (finding that not all purchasers of wine may be discriminating
because while some may have preferred brands, “there are just as likely to be
purchasers who delight in trying new taste treats.”); In re Bercut-Vandervoort & Co.,
229 USPQ 763, 764 (TTAB 1986) (evidence that relevant goods are expensive wines
sold to discriminating purchasers must be disregarded given the absence of any such
restrictions in the application or registration).

similar to Applicant’s mark as the mark at issue. We further find “The Beer Guy – Buy Beer
– Alphabetical list of Beer” (id. at TSDR 46-81) to have no probative value as the list
references beers available for delivery only in Ontario, Canada.
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As regards the general beer consuming public, we note that beer may be an
impulse purchase. Bay State Brewing, 117 USPQ2d at 1960 n.4. Even if it is not, the
sophistication or degree of purchasing care of the general consumer is not very high,
particularly in view of the relatively inexpensive costs of some beers (including craft
beer), which the record shows range from $2.49 (on sale from $2.99) per bottle of (Bear
Republic Pace Car IPA (craft beer)) to $13.99 for a 12 pack (Stella Artois).5
With regard to the more discerning craft beer consumers, even if we assume a
higher degree of care in their purchasing decisions, the record does not demonstrate
a degree of care that would outweigh the other DuPont factors. Moreover, even
sophisticated buyers are not immune from source confusion. See In re Research
Trading Corp., 793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (“[t]hat the relevant
class of buyers may exercise care does not necessarily impose on that class the
responsibility of distinguishing between similar trademarks for similar goods”)
(citing Carlisle Chem. Works, Inc. v. Hardman & Holden Ltd., 434 F.2d 1403, 168
USPQ 110, 112 (CCPA 1970) (“Human memories even of discriminating
purchasers...are not infallible.”)).
Accordingly this DuPont factor is neutral.
IV. 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

5 November 23, 2016 Final Office Action at TSDR 32 and 34.
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567; In re Detroit Ath. Co., 903 F.3d 1297, 128 USPQ2d 1047, 1048 (Fed. Cir. 2018).
“Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB
2018), aff'd mem., 777 Fed. Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, 110
USPQ2d 1810, 1812 (TTAB 2014)). “[W]here ... the goods at issue are identical, the
degree of similarity [between the marks] necessary to support a conclusion of likely
confusion declines.” Zheng Cai v. Diamond Hong, Inc., 901 F.3d 1367, 127 USPQ2d
1797, 1801 (Fed. Cir. 2018) (quoting In re Viterra, 101 USPQ2d at 1908).
The test is not whether the marks can be distinguished in a side-by-side
comparison, but rather whether their overall commercial impressions are so similar
that confusion as to the source of the goods offered under the respective marks is
likely to result. See Zheng Cai v. Diamond Hong, 127 USPQ2d at 1801 (citing Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012)). Our focus is on the recollection of the average purchaser, who normally
retains a general rather than a specific impression of trademarks. See Neutrogena
Corp. v. Bristol-Myers Co., 410 F.2d 1391, 161 USPQ 687, 688 (CCPA 1969) (many
consumers “may have but dim recollections from having previously seen or heard one
or the other of the involved marks”); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d
1734, 1740 (TTAB 2014). In this case, because the goods are beer without any
restrictions or limitations in the channels of trade, classes of consumers, or price, the
average purchaser is an ordinary consumer.
Serial No. 86877406
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We find Applicant’s ABNORMAL mark and the cited mark IT’S NOT NORMAL
similar in appearance and sound to the extent that both include the word “NORMAL”
as the final part or word. They obviously differ in that Applicant’s mark is a single
term that begins with the prefix “AB” while the cited mark is a three-word phrase
that begins with the wording “IT’S NOT.” We do not find, as Applicant suggests, that
the marks are further distinguished by the presence of an apostrophe in the cited
mark. The apostrophe in the word IT’S in Registrant’s mark merely indicates the
contraction of the words “it” and “is” and is neither a visually prominent nor an aural
component. While, as Applicant maintains, consumers viewing the two marks side-
by-side may recognize a difference in the source of the respective goods, that is not
the test. As stated, the test is whether there is a similarity in the overall commercial
impressions of the marks that leads to confusion as to the source of the respective
goods. See Zheng Cai v. Diamond Hong, 127 USPQ2d at 1801.
As to connotation and commercial impression, the Examining Attorney maintains
that the marks share the same meaning, convey the same idea and share
substantially similar commercials impressions, and that these similarities make the
marks similar. To demonstrate that the two marks connotatively are the same, the
Examining Attorney made of record various definitions of the word “abnormal,” all of
which have essentially the same definition and include by way of example:
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adjective
not normal; not average; not typical; not usual; irregular,
esp. to a considerable degree;6
adj.
Not typical, usual, or regular; not normal; deviant;7 and
adjective
“not normal, average, typical or usual; deviating from a
standard.”8
The Examining Attorney also made of record definitions of the words “not” and
“normal,” wording she asserts comprises “the registrant’s mark in significant part.”
The relevant definitions follow:
“not”
ADVERB
3 “used to express the negative of other words”;9 and
“normal”
ADJECTIVE
1 “conforming to a stand; usual; typical, or expected.”10

6 COLLINS DICTIONARIES (www.collinsdictionary.com/dictionary/american/abnormal); May
2, 2016 Office Action at TSDR 6.
7 THE AMERICAN HERITAGE® Dictionary of the English Language, 5th ed. (2015)
(www.ahdictionary.com/word/search.html?q=abnormal); May 2, 2016 Office Action at TSDR
10.
8 Dictionary.com (http://www.dictionary.com/browse/abnormal); November 23, 2016 Final
Office Action at TSDR 10.
9 Oxford Living Dictionaries (US) (https://en.oxforddictionaries.com/definition/us/not);
November 23, 2016 Final Office Action at TSDR 27.
10 Oxford Living Dictionaries (US) (https://en.oxforddictionaries.com/definition/us/normal);
November 23, 2016 Final Office Action at TSDR 23.
Serial No. 86877406
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Taking the position that the marks have different connotations, Applicant made
of record additional definitions of the word “abnormal” taken from the MERRIAM-
WEBSTER Dictionary. For example:
“different from what is normal or average; unusual
especially in a way that causes problems.”11
Applicant’s brief p. 6.12 Applicant also points to the word “abnormal” as used in a
sentence:13 “The results of the blood test were abnormal.” (Emphasis in original).14
In view of the definitions above, we find that Applicant’s mark ABNORMAL and
the cited mark IT’S NOT NORMAL convey the same meaning; they impart the same
commercial impression, suggesting a beer that is not typical or usual or that deviates
from the normal. Even assuming purchasers would visually and orally distinguish
the mark ABNORMAL and IT’S NOT NORMAL, consumer confusion has been held
likely for marks that do not necessarily sound or look alike but convey the same idea,
stimulate the same mental reaction, or may have the same overall meaning, as is the
case here. See, e.g., Proctor & Gamble Co. v. Conway, 419 F.2d 1332, 1336, 164 USPQ
301, 304 (CCPA 1970) (holding MISTER STAIN likely to be confused with MR.
CLEAN on competing cleaning products); In re M. Serman & Co., 223 USPQ 52, 53
(TTAB 1984) (holding CITY WOMAN for ladies’ blouses likely to be confused with
CITY GIRL for a variety of female clothing); H. Sichel Sohne, GmbH v. John Gross &

11 Applicant’s November 1, 2016 Response at TSDR 24.
12 4 TTABVUE 6.
13 Id. at 8.
14 Applicant’s November 1, 2016 Response at TSDR 25.
Serial No. 86877406
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Co., 204 USPQ 257, 260-61 (TTAB 1979) (holding BLUE NUN for wines likely to be
confused with BLUE CHAPEL for the same goods); Ralston Purina Co. v. Old
Ranchers Canning Co., 199 USPQ 125, 128 (TTAB 1978) (holding TUNA O’ THE
FARM for canned chicken likely to be confused with CHICKEN OF THE SEA for
canned tuna); Downtowner Corp. v. Uptowner Inns, Inc., 178 USPQ 105, 109 (TTAB
1973) (holding UPTOWNER for motor inn and restaurant services likely to be
confused with DOWNTOWNER for the same services); TRADEMARK MANUAL OF
EXAMINING PROCEDURE Section 1207.01(b) (Oct. 2018).
We reject Applicant’s contention that the addition of the word IT’S to the cited
mark alters the commercial impression. Applicant is incorrect that in the cited mark
IT’S “is a possessive pronoun and hence, conveys a different meaning to consumers.”15
Applicant’s brief p. 6,16 Nonetheless, the word IT’S as used in the cited mark does, in
fact, highlight the remaining wording, “NOT NORMAL,” which, when the mark is
viewed as a whole, characterizes the quality of Registrant’s identified beer, as does
the word ABNORMAL.
Also, we find unavailing Applicant’s unsupported contention that the marks
convey different commercial impressions because “the word ‘abnormal’ has a darker,
spookier connotation and commercial impression” than does the wording “it’s not

15 As noted, the word IT’S in the cited mark is a contraction of the words “it” and “is”; a
possessive pronoun would not include the apostrophe.
16 4 TTABVUE 7.

Serial No. 86877406
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normal.” Applicant’s brief p. 6.17 That is, Applicant explains, the cited mark IT’S NOT
NORMAL has a neutral to positive connotation and conveys to consumers, because of
the possessive pronoun, that “Registrant’s beer is specially crafted,” while consumers
will perceive Applicant’s ABNORMAL mark as suggesting not a characteristic of
Applicant’s beer, but a negative or dark characteristic of drinkers of Applicant’s beer,
namely that they are “abnormal” or “deviant” and that “its drinks are for the
adventurous, not the faint of heart.” Id. at pp. 6-7.18
While the word “abnormal” may have a different meaning than the wording “it’s
not normal” in a different context, there is nothing in the record that supports
Applicant’s assertion that it does so here. For the reasons explained above, we find
that both Applicant’s and Registrant’s marks convey the same meaning and
commercial impression when viewed in connection with the identical identified goods,
and that both marks suggest that that the respective beer deviates from the usual
and is in someway not typical, normal or average.
Last, Applicant lists decisions where the Board previously found no likelihood of
confusion between virtually identical or highly similar marks.19 It has been noted

17 Id.
18 Id. at 7-8.
19 The cases include, for example:
CROSS-OVER (bras) and CROSSOVER (ladies’ sportswear) - In
re Sears, Roebuck & Co., 2 USPQ 2d 1312 (TTAB 1987);
BEST JEWELRY (retail jewelry store services) and
JEWELERS’ BEST (bracelets) - In re Best Prods. Co., 231 USPQ
988, 989-90 (TTAB 1986);
Serial No. 86877406
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many times that each case must be decided on its own facts. See In re Nett Designs
Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior
registrations had some characteristics similar to [applicant’s] application, the PTO’s
allowance of such prior registrations does not bind the Board or this court.”); and In
re Merrill Lynch, Pierce, Fenner & Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1142
(Fed. Cir. 1987). Also, in each of those cases, unlike in this case, the Board found
either the goods and/or services were not identical or sufficiently related, or the
connotations and commercial impressions of the marks differed due to the presence
of additional wording, stylization or other variants.
We recognize that in comparing Applicant’s ABNORMAL mark with the cited IT’S
NOT NORMAL mark, we must consider them in their entireties. As stated, however,
we base our findings on the recollection of the average consumer – here, an ordinary
beer drinker – who normally retains a general rather than a specific impression of
trademarks. See In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed.
Cir. 2014). Thus, although we have taken into account the differences between the
marks in appearance and sound, we nonetheless find that overall they impart the
same meaning and engender very similar commercial impressions.

FROSTY SEAS (frozen fish) and SEAFROST (frozen fish) -
McCallum-Legaz Fish Co. v. Frozen Food Forum, Inc., 118
USPQ 178 (Com’r Pats. 1958); and
SQUIRETOWN (men’s sport clothes) and TOWN SQUIRES
(men’s shoes) - In re Mavest, Inc., 130 USPQ 40 (TTAB 1961).
Serial No. 86877406
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The DuPont factor of the similarity of the marks thus favors a finding of likelihood
of confusion.
V. Conclusion
When we consider all of the arguments and evidence relating to the relevant
likelihood of confusion factors, we find that confusion is likely between Applicant’s
mark ABNORMAL for “beer” and the cited registered mark IT’S NOT NORMAL for
“beer.” We find so due to the identical goods, the presumed identical trade channels
and classes of purchasers, and the similarity of the marks.
Decision: The refusal to register Applicant’s ABNORMAL mark under
Trademark Act Section 2(d) is affirmed.