Brothers Franchising & Development, LLCv.Three Brothers Brewing, LLC

Trademark Trial and Appeal Board

Sep 8, 2020

91232361 (T.T.A.B. Sep. 8, 2020)

This Opinion is Not a
Precedent of the TTAB

Oral Hearing: July 17, 2019 Mailed: September 8, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Brothers Franchising & Development, LLC
v.
Three Brothers Brewing, LLC
_____

Opposition No. 91232361
_____

Laura L. Myers, Cynthia A. Moyer and John C. Pickerill of Fredrikson &
Byron, P.A., for Brothers Franchising & Development, LLC.

Elizabeth S. Skilling and Robert F. Friedman of Harman Claytor Corrigan &
Wellman, for Three Brothers Brewing, LLC.
_____

Before Cataldo, Taylor and Dunn,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Three Brothers Brewing, LLC (“Applicant”) has filed an application seeking
registration on the Principal Register of the standard character mark BROTHERS
Opposition No. 91232361
- 2 -
CRAFT BREWING (CRAFT BREWING disclaimed), for “Beer, ale, lager, stout,
porter, shandy” in Class 32.1
Brothers Franchising & Development, LLC (“Opposer”) has opposed registration
of Applicant’s mark on the ground of likelihood of confusion under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), based on its claim of priority and likelihood of
confusion with the following registered marks:2
Registration No. Mark Goods/Services
47389633 BROTHERS
(standard characters)

Bar and restaurant services
(Class 43)
40291374 BROTHERS BAR &
GRILL
(standard characters)
[“BAR & GRILL”
disclaimed]

Bar and restaurant services
(Class 43)
26440845
[“EST. 1967” disclaimed]

Bar and restaurant services
(Class 42)

1 Application Serial No. 86517894 was filed on January 29, 2015, and is based upon
Applicant’s bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
2 1 TTABVUE. TTABVUE refers to the Board’s electronic docket. Citations in this opinion
are to the TTABVUE docket entry number and, where applicable, the electronic page number
where the document appears. For material or testimony that has been designated
confidential, the TTABVUE docket entry number where such material or testimony is located
is referenced.
3 Issued May 19, 2015.
4 Issued September 20, 2011; Section 8 & 15 affidavits, accepted and acknowledged.
5 Issued October 9, 2002; renewed.
Opposition No. 91232361
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Registration No. Mark Goods/Services
26440836 BROTHERS EST. 1967
(typed format7)
[“EST. 1967” disclaimed]

Bar and restaurant services
(Class 428)
24144239

[“EST. 1967” and “BAR &
GRILL” disclaimed]

Bar and restaurant services
(Class 42)
235839510 IT’S BROTHERS EST.
1967
(typed format)
[“EST. 1967” disclaimed]

Bar and restaurant services
(Class 42)

Opposer submitted with its Notice of Opposition copies of registration certificates of
its pleaded registrations, along with electronic copies thereof from the Trademark
Status Document Retrieval (“TSDR”) database of the USPTO showing the then-
current status and title of the registrations.11
Opposer also asserts common law rights in the mark BROTHERS for beer since
as early as 2011, and ownership of Application Serial No. 87290891 for the mark

6 Issued October 29, 2002; renewed.
7 Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
A typed mark is the legal equivalent of a standard character mark. TMEP § 807.03(i) (Oct.
2018).
8 Bar and restaurant services are presently classified in International Class 43.
9 Issued December 19, 2000; renewed.
10 Issued June 13, 2000, renewed.
11 1 TTABVUE 14-27.
Opposition No. 91232361
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BROTHERS, with a filing date of January 5, 2017 and claiming a date of first use in
commerce of December 31, 2011, for use in connection with beer. Not. of Opp. ¶¶ 3
and 4.12
Applicant, in its answer, denies the salient allegations in the notice of opposition.13
I. Opposer’s Request for Judicial Notice
Before turning to the merits of the appeal, we address “Opposer’s Request for
Judicial Notice.” By that request, Opposer asks that the Board take judicial notice of
the non-precedential final decision issued in connection with Opposition
No. 91227068, another proceeding to which Opposer (but not Applicant) is a party.
Applicant objects and moves to strike the request, arguing that “an unrelated TTAB
decision is not the proper type of ‘fact’ that is properly subject to judicial notice” and
that that decision was based, in large part, on identical services.”
Not only is the decision not a “fact” that is subject to judicial notice,14 the Board
does not take judicial notice of USPTO records, including prior decisions that reside

12 1 TTABVUE 8. A status copy of the application taken from the TSDR data base is attached
to the notice of Opposition. Id. at 42-43.
13 6 TTABVUE. In ¶¶ 15-20 of the Answer, Applicant makes various allegations which are in
the nature of amplifications of its denials, and we construe them as such. See generally TBMP
§ 311.02(d). In addition, Paragraph 21 thereof states: “BCB reserves its rights [sic] amend its
answer to reflect defenses supported by the evidence.” By this statement, Applicant attempts
to reserve the right to assert valid defenses in this proceeding. Such a statement is not an
affirmative defense but merely an advisory statement that Applicant may amend its pleading
at some future date. A defendant cannot reserve unidentified defenses since it does not
provide a plaintiff fair notice of such defenses. We accordingly give no further consideration
to Paragraph 21.
14 “The only kind of fact that may be judicially noticed by the Board is a fact that is ‘not
subject to reasonable dispute in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.’” TRADEMARK TRIAL AND APPEAL
Opposition No. 91232361
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therein. Cf. N.J. Inst. of Tech. v. Medjet, Inc., 47 Fed. Appx. 921, 927 (Fed. Cir. 2002)
(in a patent case, court declined to take judicial notice of the decisions and orders
entered in a prior state court action); Beech Aircraft Corp. v. Lightning Aircraft Co.,
1 USPQ2d 1290, 1293 (TTAB 1986) (Board refused to take judicial notice of
petitioner’s pleaded, and rejected, application for purposes of establishing petitioner’s
statutory entitlement to a cause of action); Wright Line Inc. v. Data Safe Services
Corp., 229 USPQ 769, 770 n.5 (TTAB 1985) (“Board does not take judicial notice
either of applications (or registrations) which reside in the Office, or of papers which
may appear therein”). Accordingly, Opposer’s motion is denied.
We add that we are thoroughly familiar with the decisions the Board issues. We
also point out that while parties may cite to non-precedential decisions, such
decisions are not binding on the Board. In re Constr. Research & Tech. GmbH, 122
USPQ2d 1583, 1585 n.6 (TTAB 2017) (“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 Fiat Grp. Mktg. & Corporate Commc’ns
S.p.A., 109 USPQ2d 1593, 1596 n.6 (TTAB 2014); In re Procter & Gamble Co., 105
USPQ2d 1119, 1121 (TTAB 2012).
Moreover, as is often noted by the Board and the courts, each case must be decided
on its own merits. The determination of registrability of a mark in another case does
not control the merits in the case now before us. In re Nett Designs Inc., 236 F.3d

BOARD MANUAL OF PROCEDURE (“TBMP”) Section 704.12 (2019), and the authorities cited
therein, including Fed. R. Evid. 201(b).
Opposition No. 91232361
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1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“[D]ecisions regarding other
registrations do not bind either the agency or this court.”); see also, In re Kent-
Gamebore Corp., 59 USPQ2d 1373 (TTAB 2001); In re Wilson, 57 USPQ2d 1863
(TTAB 2001).
II. The Record
As an initial matter, the parties stipulated that documents produced by Applicant
after April 24, 2018, Bates numbered BCB000356-BCB000384, are authentic and can
be submitted by notice of reliance.15
The record in this case consists of the pleadings and, by rule, the file of Applicant’s
application. Trademark Rule 2.122(b)(1), 37 C.F.R. § 2.122(b)(1). As noted above, also
of record are copies of Opposer’s pleaded registrations obtained from the TSDR
database submitted with Opposer’s Notice of Opposition.
During the assigned testimony periods, the parties submitted the following:
Opposer’s Evidence:
 Opposer’s Notices of Reliance on (a) the discovery
deposition of Applicant, with exhibits (submitted in
redacted form and as a confidential filing); (b) by
stipulation, documents produced by Applicant
(referenced in detail at footnote 15); (c) Applicant’s
supplemental answers to Opposer’s first set of

15 15 TTABVUE. These documents, designated as confidential and redacted in their entirety,
were submitted as Exh. B. to Opposer’s 4th Notice of Reliance, 22 TTABVUE 3-31. The non-
redacted copies were submitted at 20 TTABVUE. As previously noted, TTABVUE is the
Board’s electronic docket. In lieu of a party’s internal docketing system, because the Board
primarily uses TTABVUE in reviewing evidence, it prefers that citations to non-confidential
parts of the record include the TTABVUE docket entry number and the TTABVUE page
number. For material or testimony that has been designated confidential and which does not
appear on TTABVUE, the TTABVUE docket entry number where such material or testimony
is located should be included in any citation.
Opposition No. 91232361
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interrogatories; and (d) Applicant’s answers to
Opposer’s second set of interrogatories
 Testimony declaration, with exhibits, of Tony
DeSalvo, Opposer’s Chief Operating Officer
(DeSalvo decl.)
 Rebuttal testimony declaration, with exhibits, of
Tony DeSalvo (DeSalvo rebuttal decl.)
Applicant’s Evidence:
 Applicant’s Notice of Reliance on (a) Opposer’s
answers to Applicant’s first set of interrogatories,
with certain documents; (b) Opposer’s answers to
Applicant’s second set of interrogatories; (c) third-
party registrations
 Testimony deposition, with exhibits, of Anthony
John [Tony] DeSalvo (DeSalvo test.)16
III. Entitlement to Statutory Cause of Action17 and Priority
To establish entitlement to a statutory cause of action under Sections 13 or 14 of
the Trademark Act, a plaintiff must demonstrate a real interest in the proceeding
and a reasonable belief of damage. Australian Therapeutic Supplies Pty. Ltd. v.
Naked TM, LLC, 965 F.3d 1370, 2020 USPQ2d 10837 at *3 (Fed. Cir. 2020); see also
Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058
(Fed. Cir. 2014); Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101
USPQ2d 1713, 1727 (Fed. Cir. 2012); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d

16 Anthony John DeSalvo is identified in other proceeding filings as Tony DeSalvo.
17 Our decisions have previously analyzed the requirements of Section 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Mindful of the Supreme
Court’s direction in Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 125-
26 (2014), we now refer to this inquiry as entitlement to a statutory cause of action. Despite
the change in nomenclature, our prior decisions and those of the Federal Circuit interpreting
Sections 13 and 14 remain equally applicable.
Opposition No. 91232361
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1023, 1025 (Fed. Cir. 1999). Opposer’s entitlement to oppose registration of
Applicant’s mark is established by its six pleaded registrations, properly made of
record with its Notice of Opposition, which the record shows to be valid and
subsisting, and owned by Opposer. See, e.g., Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); N.Y. Yankees P’ship v. IET Prods.
& Servs., Inc., 114 USPQ2d 1497, 1501 (TTAB 2015). Because Opposer’s pleaded
registrations are properly of record, priority is not in issue in the opposition with
respect to those marks for the services listed therein. See King Candy Co. v. Eunice
King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
For the sake of economy, and because of the presumptions accorded under Section
7(b) of the Trademark Act, 15 U.S.C. § 1057(b), we focus our analysis of the issue of
likelihood of confusion between Applicant’s mark and the marks in Registration
No. 4738963 for BROTHERS and Registration No. 4029137 for BROTHERS BAR
AND GRILL (BAR AND GRILL disclaimed), both in standard characters and both
for “bar and restaurant services.” Because the marks in the other pleaded registration
feature additional points of difference from Applicant’s mark, if the opposition cannot
be sustained on the basis of Registration Nos. 4738963 and 4029137, it could not be
sustained on the basis of the other pleaded registered marks. See, e.g., In re Max
Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).18

18 In fact, the pleaded registrations are sufficient to support the claim and, consequently, we
do not reach the issue of whether Opposer has established prior common law rights in the
mark BROTHERS for beer. Nor do we reach the issues of whether Applicant’s affirmative
defense that Opposer abandoned its common law use of BROTHERS in connection with beer
was tried by consent. We hasten to add that our decision would be the same if we had
considered these issues.
Opposition No. 91232361
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IV. Likelihood of Confusion
Our determination under Section 2(d) is based 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) (“DuPont”); see
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003). We must consider each DuPont factor for which there is evidence and
argument. See, e.g., 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). When analyzing these factors, the overriding concern is not only to
prevent buyer confusion as to the source of the goods and services, but also to protect
the registrant from adverse commercial impact due to use of a similar mark by a
newcomer. See In re Shell Oil Co., 992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir.
1993).
As noted, “each case must be decided on its own facts and the differences are often
subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387
(CCPA 1973) (internal citations removed). In any likelihood of confusion analysis,
however, 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 (CCPA 1976). These factors, and the other
DuPont factors for which there is evidence and argument, are discussed below.

Opposition No. 91232361
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A. Strength of the Pleaded Mark
We first examine the strength of Opposer’s marks to determine the scope of protection
which it is accorded. The strength of a mark rests on the extent to which “a significant
portion of the relevant consuming public . . . recognizes the mark as a source
indicator.” Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323,
122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (citing Palm Bay Imps. v. Veuve Clicquot
Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir.
2005)). In determining the strength of a mark, we consider both inherent strength,
based on the nature of the mark itself, and commercial strength or recognition.
Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1476
(TTAB 2014); see also In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681,
1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength
(distinctiveness) and its marketplace strength (secondary meaning).”). The fifth
DuPont factor, the “fame” or strength of the prior mark, and the sixth DuPont factor,
the number and nature of similar marks in use for similar goods, DuPont, 177 USPQ
at 567, may be considered in tandem to determine the strength of Opposer’s mark
and the scope of protection to which it is entitled. Bell’s Brewery, Inc., 125 USPQ2d
at1345.
Opposer maintains that its marks are well-known, and argues that:
As a result of Opposer’s longstanding use and investment
in its BROTHERS marks, consumers have come to
associate the BROTHERS marks with Opposer.19

19 36 TTABVUE 19 (Opposer’s brief, p. 14).
Opposition No. 91232361
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1. Commercial Strength
We first analyze the commercial strength of Opposer’s marks. The commercial
strength of a mark is not a binary factor in the context of a likelihood of confusion
analysis. Joseph Phelps v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d at
1734. Rather, likelihood of confusion fame “varies along a spectrum from very strong
to very weak.” See Palm Bay v. Veuve Clicquot 73 USPQ2d at 1694 (quoting In re
Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059 (Fed. Cir. 2003)). Fame for
likelihood of confusion purposes arises as long as a “significant portion of the relevant
consuming public ... recognizes the mark as a source indicator.” Id.
Commercial strength or fame “may be measured indirectly by the volume of sales
and advertising expenditures in connection with the services sold under the mark,
and other factors such as length of time of use of the mark; widespread critical
assessments; notice by independent sources of the services identified by the marks;
and the general reputation of the services.” Tao Licensing, LLC v. Bender Consulting
Ltd., 125 USPQ2d 1043, 1056 (TTAB 2017); see also Bose Corp. v. QSC Audio Prods.
Inc., 293 F.3d 1367, 63 USPQ2d 1303, 1305-06 (Fed. Cir. 2002).
To demonstrate the commercial strength of its BROTHERS mark, Opposer
primarily relies on the declaration, with exhibits, of its Chief Operating Officer Tony
DeSalvo who states that:20
 Opposer has used its BROTHERS marks in connection with restaurant
services since 1990;

20 23 TTABVUE 2-3 (DeSalvo decl. ¶¶ 3 and 5).
Opposition No. 91232361
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 Opposer currently operates twenty restaurants in ten states across the
United States, i.e., Indiana, Illinois, Ohio, Colorado, Wisconsin, Iowa,
Kansas, Nebraska, Minnesota, and Kentucky;
 Over the past ten years, Opposer’s restaurants have generated over $288
million in revenues and Opposer has invested over $6.5 million in
advertising its restaurants under the BROTHERS marks.
Although Opposer has been using its mark in connection with restaurant services
for more than twenty-five years as of the date of the DeSalvo declaration, that use
has been confined primarily to the Midwest and a couple of adjacent states. Further,
the testimony as to Opposer’s sales and advertising figures, as Applicant notes, lacks
context, i.e., how they translate into evidence of market share for Opposer’s services.
As the Federal Circuit has stated, “[r]aw numbers of product sales and advertising
expenses may have sufficed in the past to prove fame of a mark, but raw numbers
alone in today’s world may be misleading … Consequently, some context in which to
place raw statistics is reasonable.” Bose Corp. 63 USPQ2d at 1309. Because there is
no context for Opposer’s figures, we cannot gauge the relative level of success or the
degree of exposure the relative public has had to Opposer’s BROTHERS and
BROTHER BAR & GRILL marks.
“In view of the extreme deference that is accorded to a famous mark in terms of
the wide latitude of legal protection it receives, and the dominant role fame plays in
the likelihood of confusion analysis, we think that it is the duty of a plaintiff asserting
that its mark is famous to clearly prove it.” Blue Man Prods. Inc. v. Tarmann, 75
USPQ2d 1811, 1819 (TTAB 2005). Nonetheless, the evidence convinces us that
Opposer’s BROTHERS and BROTHERS BAR & GRILL marks have achieved some
commercial success, just not a level that would require the highest level of protection.
Opposition No. 91232361
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Accordingly, we find that Opposer’s marks fall in the mid-range of the commercial
strength spectrum.
2. Inherent Strength
“In order to determine the conceptual strength of the cited mark, we evaluate its
intrinsic nature, that is, where it lies along the generic-descriptive-suggestive-arbitrary
(or fanciful) continuum of words.” In re Davia, 110 USPQ2d 1810, 1815 (TTAB 2014).
Opposer’s marks BROTHERS and BROTHERS BAR & GRILL are entitled to a
rebuttable presumption that they are inherently distinctive as evidenced by their
registration on the Principal Register without claims of acquired distinctiveness
under Section 2(f) of the Trademark Act. Tea Bd. of India v. Republic of Tea, Inc., 80
USPQ2d 1881, 1899 (TTAB 2006). 15 U.S.C. §1057(b). Nonetheless, “evidence of
third-party registrations [for the same or similar goods or services] is relevant to
‘show the sense in which a mark is used in ordinary parlance,’ ... that is, some
segment that is common to both parties’ marks may have ‘a normally understood and
well-recognized descriptive or suggestive meaning, leading to the conclusion that that
segment is relatively weak.’” Jack Wolfskin Ausrustung Fur Draussen GmbH & Co.
KGAA v. New Millenium Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed.
Cir. 2015) (quoting Juice Generation, Inc. v. GS Enters., LLC, 794 F.3d 1334, 115
USPQ2d 1671, 1675 (Fed. Cir. 2015)); see also In re I-Coat Co., 126 USPQ2d 1730,
1735 (TTAB 2018) (third-party registrations can be used to demonstrate that a term
may have a commonly accepted meaning); Top Tobacco LP v. N. Atl. Operating Co.,
101 USPQ2d 1163, 1173 (TTAB 2011) (third-party registrations indicate term
CLASSIC has suggestive meaning as applied to tobacco products).
Opposition No. 91232361
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As discussed below, we find that the arbitrary term BROTHERS forms the
dominant commercial impression of Opposer’s registered marks BROTHERS and
BROTHERS BAR & GRILL.21 An arbitrary mark is a “known word used in an
unexpected or uncommon way.” Nautilus Grp., Inc. v. Icon Health & Fitness, Inc., 372
F.3d 1330, 71 USPQ2d 1173, 1180 (Fed. Cir. 2004). See Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005) (an arbitrary term is “conceptually strong as a trademark”).
Applicant maintains that Opposer’s BROTHERS mark is inherently weak and
entitled to minimal protection. Applicant argues that “the term ‘Brothers’ is simply
suggestive of businesses founded and/or operated by brothers or people who consider
themselves brothers.” In support of that position, Applicant has made of record a
number of use-based registrations issued to third-parties for BROTHERS-formative
marks primarily for beer.22

21 37 TTABVUE 22. We take judicial notice of the definition of “brothers” which is defined,
in part, as:
1: a male who has the same parents as another or one parent in common with
another
2: one related to another by common ties
3: a fellow member – used as a title for ministers in some evangelical denominations
merriam-webster.com/dictionaries/brothers, retrieved March 19, 2020. The Board may take
judicial notice of dictionary definitions, including online dictionaries that exist in printed
format or have regular fixed editions. In re Cordua Rests. LP, 110 USPQ2d 1227, 1229 n.4
(TTAB 2014), aff'd, 823 F.3d 594, 118 USPQ2d 1632 (Fed. Cir. 2016); Threshold.TV Inc. v.
Metronome Enters. Inc., 96 USPQ2d 1031, 1038 n.14 (TTAB 2010); In re Red Bull GmbH, 78
USPQ2d 1375, 1377 (TTAB 2006)
22 28 TTABVUE 37-78. None of the third-party registrations are for bar and restaurant
services and only three are for taproom services. However, because we have found beer to be
related to Opposer’s bar and restaurant services, we find the third-party registrations for
beer and other alcoholic beverages pertinent to our analysis.
Opposition No. 91232361
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Opposer questions the probative value of the third-party registrations, arguing
that Applicant did not provide evidence of use of the marks in commerce. Opposer is
correct that these registrations are not evidence that the registered marks are in use
on a commercial scale. See In re Morinaga Nyugyo Kabushiki Kaisha, 120 USPQ2d
1738, 1745 (TTAB 2016). Nor, consequently and as we make clear, do they show that
consumers have become so used to seeing these registered marks in the market place
that they have learned to distinguish among them by minor differences. Id.; see also
Sock It To Me, Inc., 202 USPQ2d 10611 at *9.
However, as noted, they may show that a term carries a descriptive or suggestive
meaning. That is, similar to dictionary definitions, “third party registrations are
relevant to prove that some segment of the composite marks which both contesting
parties use has a normally understood and well-recognized descriptive or suggestive
meaning, leading to the conclusion that that segment is relative ly weak.” Juice
Generation, 115 USPQ2d at 1675 (quoting 2 McCarthy on Trademarks and Unfair
Competition § 11:90 (4th ed. 2015)). We list the third-party registrations below:23

23 Unless otherwise specified, all of the listed registrations registered on the Principal
Register. Also, we have not considered the cancelled registrations, Registration Nos.
4276141, 1710305, 5471201, 4172001, 3819327, and 38784252, which have no probative
value. Frito-Lay N. Am., Inc. v. Princeton Vanguard, LLC, 109 USPQ2d 1949, 1956 n.9 (2014)
(cancelled registrations are not probative), vacated and remanded on other grounds, 786 F.3d
960, 114 USPQ2d 1827 (Fed. Cir. 2015), original decision aff’d, Frito-Lay N. Am., Inc. v.
Princeton Vanguard, LLC, 124 USPQ2d 1184 (TTAB 2017), civil action filed sub nom
Snyder’s Lance, Inc. v. Frito-Lay N. Am., Inc., No. 3:17-CV-00652 (W.D.N.C. Nov. 6, 2017).
Similarly, the marks in Registration No. 4895562 ( ), Registration No. 4699961
(BROTHA FROM ANOTHER MOTHER), and Registration No. 4880007 (YOU MUD, BRO?)
do not include the term BROTHER(S), or its abbreviated form BROS., and have little
probative value.
Opposition No. 91232361
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Registration
No.
Mark Goods/Services
661443

Fresh fruits, fresh melons
4882282 BASTARD BROTHERS
BREWING COMPANY
(Brewing Company
disclaimed)
Beer
4734713 BEERDED BROTHERS
BREWING
(Brewing disclaimed)
Beer
5130595
(Supplemental
Register)
BISSEL BROTHERS
(Brothers disclaimed)
Beer
5161392

(Bitter and Brewing Co.
disclaimed)

Beers; black beer; malt beer; malt
liquor; pale beer
5161391 BITTER BROTHERS
BREWING COMPANY
(Bitter and Brewing Company
disclaimed)
Beer; brewed malt-based alcoholic
beverage in the nature of a beer;
malt beer; malt liquor; pale beer
4470795 BLOOD BROTHERS Non-alcoholic cocktail mixes
2208665 BOOTH BROS Dairy products, namely, fluid milk,
lowfat milk, skim milk
2208664

Dairy products, namely, fluid milk,
lowfat milk, skim milk
4845391 BROTHER BENJAMIN Beer
5514866 BROTHER PERKIN’S
BROWN ALE
(Brown Ale disclaimed)
Beer
4555981 BROTHER THELONIOUS Beer
5051630 BROTHERS Alcoholic drinks except beers,
namely, hard ciders, hard apple
ciders, hard pear ciders, fruit
flavored hard ciders, flavored hard
ciders and hard ciders containing
fruit juices
4487273 BURNING BROTHERS
BREWING
(Brothers and Brewing
disclaimed)
Beer
4356725
(Registered
under 2(f))
CHENEY BROTHERS
(Brothers disclaimed)
Non-alcoholic fruit- and vegetable-
juice beverages and wholesale
distributorship services in the field
of, among other things, beverages
(in relevant part)
4189574
(Registered
under 2(f))
CHIVAS BROTHERS Alcoholic beverages except beers
Opposition No. 91232361
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Registration
No.
Mark Goods/Services
4949889 DRINK JUICE BRO
(Juice disclaimed)
Fruit juice; vegetable juices;
vegetable-fruit juices
4423780 DUTCH BROS. BLUE
REBEL
Energy drinks
5492654

(Beer Co. disclaimed)
Beer; clothing items; and taproom
services
5498159 EAST BROTHER BEER CO.
(Beer Co. disclaimed)
Beer; taproom services; clothing
items
3361442
(Registered
under 2(f))
GRIESEDIECK BROS. Beer
5419307 HALF BROTHERS
BREWING COMPANY
(Brewing Company
disclaimed)
Beer, taproom services; clothing
items
4954150
(Registered
under 2(f))
HANSON BROTHERS
(Brothers disclaimed)
Beer
5281636 LAKE BROTHERS BEER
COMPANY
(Brothers Beer Company
disclaimed)
Beer, ale, lager, stout, porter,
shandy
4649180 O BROTHER WHERE ALDO Beer
4273451

(Juicery disclaimed)
Fruit juice; non-alcoholic fruit juice
beverages, vegetable and vegetable-
fruit juices
5556620 QUAFF BROTHERS Beer
4483523

[Imperial Red Ale and
Brewing Company
Warrenville IL disclaimed]
Ale
2070416 THE BREW BROTHERS Beer
5027927

(Trade Mark and Brothers
Beer Co disclaimed)
Beer
Opposition No. 91232361
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Registration
No.
Mark Goods/Services
4560177 TWO BROTHERS BREWING
CO.
(Brewing Co. disclaimed)
Beer
2319407

(Brewing Company
disclaimed)
Beer

Of the thirty-two live registrations listed above, seven, i.e., Registration Nos.
661443, 2208664, 2280665, 4356725, 4949889, 4423780, and 4273451, cover goods
that on the face of their identifications are not related to the beer/alcohol and
restaurant and bar industries and, accordingly, have little, if any, probative value.
See i.am.symbolic, 123 USPQ2d at 1751 (disregarding third-party registrations for
other types of goods where the proffering party had neither proven nor explained that
they were related to the goods in the cited registration); In re Thor Tech Inc., 90
USPQ2d 1634, 1639 (TTAB 2009) (the third-party registrations are of limited
probative value because the goods identified in the registrations appear to be in fields
which are removed from the goods at issue).
Of those third party registrations for related goods and services, the registered
marks create commercial impressions distinct from Opposer’s registered marks. The
marks in Registration Nos. 4734713 (BEERDED BROTHERS BREWING), 4470795
(BLOOD BROTHERS), 5498159 (EAST BROTHER BEER CO), 4882282 (BASTARD
BROTHERS BREWING COMPANY), 5556620 (QUAFF BROTHERS) and 4649180
(O BROTHER WHERE ALDO) do not share the religious or familial connotations of
Opposition No. 91232361
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the majority of the marks, and are of limited value because they have unique and
distinct commercial impressions resulting from their wording.
The nineteen remaining registrations, save one, are for marks that include
additional distinctive wording and other matter not present in Opposer’s pleaded
marks, including given and surnames that, when combined with the word
BROTHER(S), contribute to their suggestive connotation. For example, the marks in
Registration Nos. 4845391 (BROTHER BENJAMIN), 5514866 (BROTHER
PERKIN’S BROWN ALE), and 4555981 (BROTHER THELONIOUS) have
connotations of individuals in a religious order; and the marks in, for example,
Registration Nos., 5130595 (BISSEL BROTHERS), 4954150 (HANSON
BROTHERS), and 3361442 (GRIESEDIECK BROS.) combine surnames with the
word “BROTHERS” or its abbreviation “BROS.,” and convey a connotation of
particular related individuals. These third-party registrations tend to confirm
Applicant’s contention that the term “BROTHERS,” particularly when combined with
additional distinguishing and personifying matter not present in Opposer’s pleaded
marks, suggests a familial or otherwise affiliated, connotation. That is, the third-
party marks are similar to each other. The question still remains whether Applicant’s
and Registrant’s marks when viewed as a whole are confusingly similar.
The mark in Registration No. 5051060, BROTHERS, the only third-party mark
that has no additional terms or other matter to contribute to its overall commercial
impression, is the only mark that is as similar to Applicant’s mark as are Opposer’s
pleaded marks. It is registered without any claim of acquired distinctiveness and
Opposition No. 91232361
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therefore is entitled to the 7(b) presumptions of inherent distinctiveness, as is and as
noted above, Opposer’s pleaded marks.
While as stated, the third-party registrations may show that the term
BROTHERS, when combined with other distinctive matter, suggests that the
providers of beer enjoy a familial or other relationship, they do not support the
conclusion that the term BROTHERS, alone or combined with nondistinctive matter,
is inherently weak. Considering both inherent and commercial strength, we find
Opposer’s marks BROTHERS and BROTHERS BAR & GRILL are entitled to the
ordinary scope of protection given inherently distinctive marks.
We add that even if we found the scope of the cited registered marks to be
narrowed based on Applicant’s evidence, it would not change the result in this case,
as even weaker marks may be entitled to protection against registration of very
similar marks for related goods and services. See King Candy Co. v. Eunice King’s
Kitchen, Inc., 496 F.2d 1400, 1401 182 USPQ 108, 109 (CCPA 1974) (“Confusion is
confusion. The likelihood thereof is to be avoided, as much between ‘weak’ marks as
between ‘strong’ marks, or as between a ‘weak’ and a ‘strong’ mark.”) ; see also
i.am.symbolic, 127 USPQ2d at 1636 n. 13.
B. The Marks
We next address the DuPont likelihood of confusion factor focusing on “the
similarity or dissimilarity of the marks in their entireties as to appearance, sound,
connotation and commercial impression.” Palm Bay v. Veuve Clicquot, 73 USPQ2d at
1692 (citing DuPont, 177 USPQ at 567). “The proper test is not a side-by-side
Opposition No. 91232361
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comparison of the marks, but instead whether the marks are sufficiently similar in
terms of their commercial impression such that persons who encounter the marks
would be likely to assume a connection between the parties.” Coach Servs. Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012)
(quotation omitted).
Because this factor is based on the marks in their entireties, our analysis cannot
be predicated on dissecting the marks into their various components; that is, the
decision must be based on the entire marks, not just part of the marks. In re Nat’l
Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985); see also Franklin
Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It
is axiomatic that a mark should not be dissected and considered piecemeal; rather, it
must be considered as a whole in determining likelihood of confusion.”). On the other
hand, there is nothing improper in assigning more or less weight to a particular
feature of a mark, provided the ultimate conclusion rests on a consideration of the
marks in their entireties. Nat’l Data, 224 USPQ at 751.
We find, on comparison, that Applicant’s mark BROTHERS CRAFT BREWING
and Opposer’s marks BROTHERS and BROTHERS BAR & GRILL are similar in that
all three include the term BROTHERS as the dominant or sole part of the marks.
Neither the wording “CRAFT BREWING” in Applicant’s mark nor the wording “BAR
& GRILL” in one of Opposer’s marks serves to distinguish the marks. The wording
“CRAFT BREWING” has little to no source-indicating significance because it
immediately describes a characteristic of Applicant’s beer and has been disclaimed.
Opposition No. 91232361
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Similarly, the wording “BAR & GRILL” simply describes the type of services recited
in the registration and, it too, has been disclaimed. As such, this wording is entitled
to less weight in our determination. See In re Chatam Int’l Inc., 380 F.3d 1340, 71
USPQ2d 1944 (Fed. Cir. 2004) (descriptive terms are properly given less weight).
The significance of the word BROTHERS as the dominant element of Applicant’s
mark and one of the cited marks is further reinforced by its position as the first word
in those marks. See Presto Products, Inc. v. Nice-Pak Products, Inc., 9 USPQ2d 1895,
1897 (TTAB 1988) (“it is often the first part of a mark which is most likely to be
impressed upon the mind of a purchaser and remembered”). See also Palm Bay
Imports Inc. v. Veuve Clicquot Ponsardin, 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); Century 21 Real Estate Corp. v.
Century Life of America, 970 F.2d 874, 23 USPQ2d 1698, 1700 (Fed. Cir. 1992) (upon
encountering the marks, consumers will first notice the identical lead word). “[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). The peripheral differences here are unquestionably descriptive and latter
terms that, as noted, fail to distinguish the marks.
While, as Applicant points out, there are differences between the marks when
viewed on a side-by-side basis, we find that when considered in their entireties,
Applicant’s mark BROTHERS CRAFT BREWING and Opposer’s BROTHERS and
BROTHER BAR & GRILL marks are similar in appearance, sound, connotation and
Opposition No. 91232361
- 23 -
commercial impression due to the shared term, BROTHERS, and that similarity
outweighs the differences in appearance and sound identified by Applicant.
The DuPont factor of the similarity of the marks thus favors a finding of likelihood
of confusion.
C. Relatedness of the Goods and Services – “Something More”
We now consider the second DuPont factor which “considers ‘[t]he similarity or
dissimilarity and nature of the goods or services as described in an application or
registration.’” In re Detroit Athletic Co., 903 F.3d 1297, 128 USPQ2d 1047, 1051 (Fed.
Cir. 2018) (quoting DuPont, 177 USPQ at 567); Stone Lion Capital Partners, LP v.
Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161-63 (Fed. Cir. 2014). It is
not necessary that the goods and services be identical or competitive, or even that
they move in the same channels of trade, to support a finding of likelihood of
confusion. Rather, it is sufficient that the goods and services are related in some
manner, or that the circumstances surrounding their marketing are such that they
would or could be encountered by the same persons in situations that would give rise,
because of the similarity of the marks, to a mistaken belief that they originate from
the same source or that there is an association or connection between the sources of
the goods and services. Coach Servs., 101 USPQ2d at 1721; Thor Tech, 90 USPQ2d
at 1635; Monsanto Co. v. Enviro-Chem Corp., 199 USPQ 590, 595-96 (TTAB 1978).
Opposition No. 91232361
- 24 -
Here, we look to determine the relationship, if any, between Applicant ’s “beer, ale,
lager, stout, porter, shandy”24 with Registrant’s “bar and restaurant services.”
Applicant, citing Coors Brewing, supra, which relies on Jacobs v. International
Multifoods Corp., 668 F.2d 1234, 1235 (CCPA 1982), maintains that “[t]he question
of whether restaurant services and beer are sufficiently related as to cause the
likelihood of confusion is subject to a well-established requirement that the Opposer
show ‘something more.’”25 Applicant argues:
Opposer is incorrect when it suggests that,
notwithstanding the well-established requirement set
forth by Jacobs and Coors that it need to demonstrate
“something more,” it is somehow not required to do so
because it included the term “bar services” in its
registrations. Opposer’s Brf. at 11-12. The very premise of
Coors is that restaurants serve beer. The fact that Opposer
uses the word “bar” in its registration affects neither the
basis nor applicability of the “something more”
requirement.
(Applicant’s brief, p. 8).26
By contrast, Opposer asserts that Applicant misunderstands the decision in Coors
Brewing because that case involved an ex parte appeal in which the owner of the
registered mark had no opportunity to introduce any evidence surrounding use of its

24 Both Applicant and Opposer focus their discussion on beer and we shall do the same.
Notably, we need not find similarity as to each and every product listed in Applicant’s
description of goods. It is sufficient for a refusal based on likelihood of confusion that
relatedness is established for any item encompassed by the identification of goods in a
particular class in the application. Tuxedo Monopoly, Inc. v. General Mills Fun Group, 648
F.2d 1335, 209 USPQ 986, 988 (CCPA 1981); In re i.am.symbolic, llc, 116 USPQ2d 1406, 1409
(TTAB 2015); Inter IKEA Sys. B.V. v. Akea, LLC, 110 USPQ2d 1734, 1745 (TTAB 2014).
25 37 TTABVUE 13.
26 37 TTABVUE 14.
Opposition No. 91232361
- 25 -
mark, and the Board’s evidence was based on abstract evidence regarding unrelated
third-party trademarks. (Opposer’s rebuttal brief, p. 10).27 Unlike in that case,
Opposer argues that in this case it has introduced evidence regarding the nature of
the parties’ use of their respective marks in commerce that establishes “something
more.” Opposer further argues that it “falls within the ‘tiny percentage’ [of
restaurants who also serve as the source of beer] and is relying on its own sales of
private label beer to demonstrate that ‘something more’ exists to support a finding
that Opposer’s bar and restaurant services are highly related to Applicant’s beer.”
(Id. at 11-12).28
We begin our analysis by pointing out that Coors Brewing and Jacobs both
concerned the requirement to show relatedness through “something more” in the
specific context of restaurant services on the one hand and food and beverage
products on the other. The court explained in Coors Brewing that this requirement is
based in part on the very large number of U.S. restaurants:
It is not unusual for restaurants to be identified with
particular food or beverage items that are produced by the
same entity that provides the restaurant services or are
sold by the same entity under a private label. Thus, for
example, some restaurants sell their own private label ice
cream, while others sell their own private label coffee. But
that does not mean that any time a brand of ice cream or
coffee has a trademark that is similar to the registered
trademark of some restaurant, consumers are likely to
assume that the coffee or ice cream is associated with
that restaurant. The Jacobs case stands for the contrary
proposition, and in light of the very large number of
restaurants in this country and the great variety in the

27 38 TTABVUE 15.
28 38 TTABVUE 17-18.
Opposition No. 91232361
- 26 -
names associated with those restaurants, the potential
consequences of adopting such a principle would be to limit
dramatically the number of marks that could be used by
producers of foods and beverages.
68 USPQ2d at 1064.
To determine whether confusion is likely to result from use of similar marks for
food or beverage items and restaurant services, courts and the Board look for evidence
of a “specific commercial relationship between [the goods] and restaurant services”
that indicates consumers would be likely to believe an association exists between the
specific food or beverage items involved in the proceeding and restaurant services. In
re Opus One, 60 USPQ2d 1812, 1813-15 (TTAB 2001). For example, the Board has
found the “something more” requirement to be met where an applicant’s mark made
clear that its restaurant specialized in registrant’s type of goods. See In re Golden
Griddle Pancake House Ltd., 17 USPQ2d 1074 (TTAB 1990) (GOLDEN GRIDDLE
PANCAKE HOUSE for restaurant services confusingly similar to GOLDEN
GRIDDLE for table syrup); In re Azteca Restaurant Enters., Inc., 50 USPQ2d 1209
(TTAB 1999) (AZTECA MEXICAN RESTAURANT for restaurant services
confusingly similar to AZTECA for Mexican food items). The Board also found the
requirement met where the registered mark was “a very unique, strong mark” and
there was a commercial relationship between the goods (mustard) and restaurants.
In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467, 1469 (TTAB 1988) (no evidence
of third-party use or registrations of marks containing the expression “Mucky Duck”);
see also Opus One, 60 USPQ2d at 1813-15 (finding “something more” based on “strong
Opposition No. 91232361
- 27 -
and arbitrary character of registrant’s OPUS ONE mark” and the fact that the record
showed that registrant’s wines were actually sold in applicant's restaurant).
We begin our analysis by noting that Opposer’s recited services are not only
restaurant services, but also bar services. While we do not find that the inclusion of
“bar services” in Opposer’s recited bar and restaurant services, alone, establishes a
commercial relationship between those services and Applicant’s beer and, as
Applicant points out, the Board previously has required a showing of “something
more” for “restaurant and bar services,”29 the record in this case reflects that the
respective goods and services are complementary and related. Before discussing the
record in detail, we take judicial notice of the definition of “bar” which is defined, in
part as: “5 b : a room or establishment where alcoholic drinks and sometimes food are
served” and the definition of “beer,” defined, in part, as “1 : an alcoholic beverage
usually made from malted cereal grain (such as barley), flavored with hops, and
brewed by slow fermentation.”30
The record shows that Opposer’s bar and restaurant services feature an extensive
beer menu, and Applicant’s beer, while currently only distributed in Virginia, is sold
to distributors for further sale and distribution in trade channels that include
restaurants.31 Under these circumstances we find Applicant’s beer complementary to

29 In that regard, Applicant cited to the unpublished decisions in In re Tin Roof Brewing Co.,
LLC, No. 86598212, 2017 WL 4154957 (TTAB Aug. 24, 2017) and In re Iron Hill Brewery,
LLC, Serial No. 86682532, 2017 WL 3773113 (TTAB Jul. 28, 2017).
30 Both definitions are taken from the Merriam-Webster online dictionary, www.merriam-
webster.com, retrieved April 15, 2020.
31 18 TTABUE. We note Applicant designated as confidential the broad trade channels in
which its beer is distributed along with specific distribution information. While we treat the
Opposition No. 91232361
- 28 -
Opposer’s bar and restaurant services as it could be sold as a menu item in Opposer’s
BROTHERS and BROTHERS BAR & GRILL establishments.32
In addition, the record shows the requisite “something more” to establish that beer
and bar and restaurant services are related in this case. More particularly, the record
confirms that Opposer’s bar services comprise the most significant portion of
Opposer’s bar and restaurant services, both in the ratio of bar to restaurant services
and in that the bar is a focal point in Applicant’s establishments. Mr. DeSalvo, in his
testimony deposition, particularly testifies as to Opposer’s business model as follows:
So we -- even though we are based out of LaCrosse,
Wisconsin and we’ve got, you know, many, many, many
Brothers’ beers here, we want to establish a relationship
with the -- on a couple of levels with our guests. Our guests
are anywhere between 21 and let’s say 55 or 60. Right? And
we will take, well, every market has a lot of similarities,
you know, we know what works well with Brothers and
what doesn’t. We -- we want to be able to establish, say, for
I will use the downtown Denver. Downtown Denver, don’t
hold me to this, but it’s 20 miles away from our Lone Tree,
Colorado location where these two beers were, right? But
what we have got, the downtown Denver location will have
guests that are very specific to downtown Denver, more
urban, more metropolitan, where they will have a different
set of likes and dislikes. Where Lone Tree, Colorado is more
suburban and will have different likes and dislikes. So, we
empower our management to establish a relationship with

specifics as confidential, we do not consider the broad trade channel categories to be so and
have generally referred to them. See Noble House Home Furnishings, LLC v. Floorco Enters.,
LLC, 118 USPQ2d 1413, 1416 n.21 (TTAB 2016) (the Board must be able to discuss the record
evidence in its opinions unless there is an overriding need for confidentiality). Cf. Trademark
Rule 2.116(g), 37 C.F.R. 2.116(g) (“The Board may treat as not confidential that material
which cannot reasonably be considered confidential, notwithstanding a designation as such
by a party.”).
32 While the record shows that there are geographic distinctions in where the parties are
presently offering their respective goods and services, there are no geographic limitations in
Applicant’s application and the pleaded registrations.
Opposition No. 91232361
- 29 -
those locations, and our model, typically 30 percent liquor,
30 percent food, and 25 percent on average is beer, we want
to be able to give the guest what they want while being still
true to our core brand.
DeSalvo test., pp. 49-51.33 To reiterate, sales of beer account for approximately 25%
of Opposer’s annual sales, and beer is prominently featured on the menus.34 While
Opposer does not have a BROTHERS-labeled beer on the menu of record, it uses the
BROTHERS mark to identify its beverage selections. Moreover, the BROTHERS
beverage menu features a selection of more than 45 beers. (DeSalvo decl., exh. 1;
DeSalvo test., exh. 1).35

33 32 TTABVUE 52-54.
34 29 TTABVUE 2, 5-6; (DeSalvo rebuttal decl. ¶¶ 2, 4, ext. A).
35 23 TTABVUE 7-8; 32 TTABVUE 93-94.
Opposition No. 91232361
- 30 -

Similarly, record images of Opposer’s bar and restaurant establishments, a
sampling of which is shown below, show that the bar area comprises a significant
part and focal point of those establishments:36

36 29 TTABVUE 3-4; 30 TTABVUE 3, 5, 50.
Opposition No. 91232361
- 31 -

Further, Opposer has sold beer under its BROTHERS marks and intends to
continue to do so in the future.37 While we note the gap in Opposer’s private label or
BROTHERS-labeled beer sales, the record reflects that Opposer offered for sale and
sold beer under the BROTHERS mark from 2006 through 2009,38 and again as of

37 32 TTABVUE 3 (DeSalvo decl. ¶ 7).
38 Id.
Opposition No. 91232361
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2017 as shown by its beer tap rebranding efforts in relation to its collaboration with
Breck beer.39
Opposer’s BROTHERS and BROTHERS BAR & GRILL marks are the only
registrations of record for BROTHERS-formative marks that cover bar and
restaurant services. We acknowledge the single third-party registration for the mark
BROTHERS (alone) of record for, as identified in part, hard ciders specifically
excluding beer. This single registration covers goods that are not as closely related to
Opposer’s registered services. Moreover, the addition of the wording BAR & GRILL
in one of the pleaded marks clearly highlights Opposer’s bar services.
At bottom, on this record, we find beer and bar and restaurant services to be
complementary and Opposer has used its strong BROTHERS mark in connection
with both beer and bar and restaurant services. Consumers therefore would likely
infer that Applicant’s goods, offered under a very similar mark, emanate from the
same source as Opposer’s bar services, or are sponsored by Opposer.
We thus find that the DuPont factor of the relatedness of the goods and services
favors a finding of likelihood of confusion.
D. Channels of Trade/Classes of Consumers
We next address the third DuPont factor which considers “[t]he similarity or
dissimilarity of established, likely-to-continue trade channels.” DuPont, 177 USPQ at
567. Since neither Applicant’s BROTHER’S CRAFT BREWING application nor

39 32 TTABVUE 21-23, 55-56 (DeSalvo test. 19-21, 53-54); 29 TTABVUE 8 (DeSalvo rebuttal
decl., exh. B).
Opposition No. 91232361
- 33 -
Opposer’s pleaded registrations for the standard character marks BROTHERS and
BROTHERS BAR & GRILL provide any limitations on the channels of trade and
classes of purchasers, we must presume that Opposer’s services and Applicant’s goods
are rendered/sold through all the normal and usual trade channels for such goods and
services and that they are offered to all usual purchasers of such goods and services.
See Citigroup Inc. v. Capital City Bank Grp., Inc., 637 F.3d 1344, 98 USPQ2d 1253,
1261 (Fed. Cir. 2011); Hewlett-Packard Co .v. Packard Press, Inc., 281 F.3d 1261, 62
USPQ2d1001, 1005 (Fed. Cir. 2002); In re Jump Designs LLC, 80 USPQ2d 1370, 1374
(TTAB 2006).
It is undisputed that bars, as well as restaurants, commonly serve beer and that
patrons of bars and restaurants are exposed to both the bar’s and/or restaurant’s
service mark and to the trademarks under which the beer is labeled and by which it
is listed on the bar’s and/or restaurant’s menu or drink list. To that extent, and as
noted above, Applicant’s beer and Opposer’s bar and restaurant services are
complementary goods and services which may be encountered together by the same
purchasers.
The record also shows that the ordinary trade and distribution channels for beer
include bars and restaurants. Indeed, the record in this case shows that Applicant’s
beer is sold to distributors for ultimate sale in restaurants and that Opposer operates
a combination bar and restaurant, which features numerous beers on its drink
menu.40 Thus, the trade channels and classes of consumers for both Applicant’s beer

40 We recognize the then-current geographical distinctions, as discussed later in this decision,
of Applicant’s beer distribution and Opposer’s rendering of bar and restaurant services, but
Opposition No. 91232361
- 34 -
and Opposer’s bar and restaurant services overlap. Applicant did not argue to the
contrary and, in fact, is silent on this issue.
The third DuPont factor therefore also favors a finding of likelihood of confusion.
E. Actual Confusion
Applicant’s assertion that there is no evidence of actual confusion between the
marks in “over three years of overlapping use”41 is entitled to very little weight.
Contrary to that contention, the record show that the marks have had little
opportunity for overlapping use because Applicant has primarily, if not solely, used
its mark in the state of Virginia while Opposer, as of July 24, 2018, had yet to expand
its operations into the state.42 Thus, the opportunity for actual confusion to have
occurred in the marketplace is minimal. See Cunningham v. Laser Golf Corp., 222
F.3d 943, 55 USPQ2d 1842, 1847 (Fed. Cir. 2000). Moreover, it is not necessary to
show actual confusion in order to establish likelihood of confusion. Herbko Int’l Inc.
v. Kappa Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. (2002); Weiss
Associates, Inc. v. HRL Associates, Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1842-43
(Fed. Cir. 1990), aff’g HRL Associates, Inc. v. Weiss Associates, Inc., 12 USPQ2d
1819 (TTAB 1989). Accordingly, the eighth DuPont factor, the length of time during

this does not detract from our finding that the ordinary trade and distribution channels for
beer include bars and restaurants.
41 37 TTABVUE 23, (Applicant’s brief, p. 18).
42 22 TTABVUE 35; Opposer’s Not of Rel., Exh. C (“BCB’s [sic] only sells its products in
Virginia”); 23 TTABUE 2, T. DeSalvo Decl. ¶ 3 (Virginia is one of the states in which Opposer
“is actively pursuing opportunities”).
Opposition No. 91232361
- 35 -
and conditions under which there has been contemporaneous use without actual
confusion, is neutral.
F. Conclusion
We have considered all of the arguments and evidence of record and all relevant
DuPont factors. We find the marks at issue very similar, the goods and services
related, and the trade channels and classes of consumers to overlap. We further find
that the evidentiary record (1) satisfies the “something more” requirement as it
pertains to the relatedness of beer and bar and restaurant services, and (2) does not
demonstrate that Opposer’s BROTHERS and BROTHERS BAR & GRILL marks are
so weak that they are not entitled to protection against Applicant’s very similar mark
BROTHER CRAFT BREWING, which is dominated by the term BROTHERS,
notwithstanding the presence of the additional terms CRAFT BREWING.
“In reaching this conclusion, we bear in mind that Applicant, as the subsequent
user, had an obligation to select a mark that avoided confusion with existing marks.
See Bridgestone Ams. Tire Operations LLC v. Federal Corp., 673 F.3d 1330, 102
USPQ2d 1061, 1063 (Fed. Cir. 2012) (citing Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1003 (Fed. Cir. 2002) (“This court resolves
doubts about the likelihood of confusion against the newcomer because the newcomer
has the opportunity and the obligation to avoid confusion with existing marks.”));
Planters Nut & Chocolate Co. v. Crown Nut Co., 305 F.2d 916, 134 USPQ 504, 511
(CCPA 1962) (“[A]ll doubt as to whether confusion, mistake, or deception is likely is
to be resolved against the newcomer.”).
Opposition No. 91232361
- 36 -
Decision: Opposition No. 91232361 is sustained.