Copper Moon Coffee LLC

Trademark Trial and Appeal Board

Sep 29, 2020

88064160 (T.T.A.B. Sep. 29, 2020)

This Opinion is Not a
Precedent of the TTAB

Mailed: September 29, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Cooper Moon Coffee LLC
_____

Serial No. 88064160
_____

Tyler B. Droste of Gutwein Law,
for Cooper Moon Coffee LLC
Dezmona J. Mizelle-Howard, Trademark Examining Attorney, Law Office 110,
Chris A.F. Pedersen, Managing Attorney.
_____

Before Bergsman, Wellington, and Dunn,
Administrative Trademark Judges.

Opinion by Dunn, Administrative Trademark Judge:
Cooper Moon Coffee LLC (Applicant) seeks registration on the Principal Register
of the mark BEAN BLOSSOM (in standard characters) for “coffee, but not including
alcoholic beverages” in International Class 30.1 The application includes a disclaimer
of BEAN.

1 Application Serial No. 88064160 was filed on August 3, 2018, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b).
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The Trademark 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, as applied
to the goods identified in the application, so resembles the registered mark
BEANBLOSSOM (in standard characters) for “hard cider” in International Class 33,2
on the Principal Register as to be likely to cause confusion, to cause mistake, or to
deceive.
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed.
We note that new evidence was attached Applicant’s appeal brief. The record in
the application should be complete prior to the filing of an appeal. Trademark Rule
2.142(d). However, because the Examining Attorney did not object to consideration of
the new evidence, but addressed its merits in her brief, we will do the same.
Trademark Trial and Appeal Board Manual of Procedure (TBMP) §1203.02(e) (2018).
We affirm the refusal to register.
I. Likelihood of Confusion
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
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

2 Registration No. 4006126 issued August 2, 2011, Section 8 accepted.
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confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). See also In re Majestic Distilling Co., 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 (CCPA 1976). These factors, and the other relevant DuPont
factors now before us, are discussed below. We must consider each relevant DuPont
factor for which there is evidence and argument. See In re Guild Mortg. Co., 912 F.3d
1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019).
A. Similarity or Dissimilarity of the Marks
The first DuPont factor requires consideration of "[t]he similarity or dissimilarity
of the marks in their entireties as to appearance, sound, connotation and commercial
impression." DuPont, 177 USPQ at 567. See also Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691
(Fed. Cir. 2005). Applicant's standard character mark BEAN BLOSSOM and
Registrant's standard character mark BEANBLOSSOM differ only in the absence or
presence of a space. This is not a difference which generally affects the commercial
impression of otherwise identical marks. See Giersch v. Scripps Networks, Inc., 90
USPQ2d 1020, 1025 (TTAB 2009) (“the spaces that respondent places between the
words [DESIGNED TO SELL] do not create a distinct commercial impression from
petitioner's presentation of his mark as one word [DESIGNED2SELL]”); Seaguard
Corp. v. Seaward Int'l, Inc., 223 USPQ 48, 51 (TTAB 1984) ("[T]he marks
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'SEAGUARD' and 'SEA GUARD' are, in contemplation of law, identical [internal
citation omitted]."); In re Best W. Family Steak House, Inc., 222 USPQ 827, 827 (TTAB
1984) ("There can be little doubt that the marks [BEEFMASTER and BEEF
MASTER] are practically identical"); Stock Pot, Inc., v. Stockpot Rest., Inc., 220 USPQ
52, 52 (TTAB 1983), ("There is no question that the marks of the parties [STOCKPOT
and STOCK POT] are confusingly similar."), aff'd, 737 F.2d 1576, 222 USPQ 665
(Fed. Cir. 1984).
We are not persuaded by Applicant’s argument that the space between the terms
BEAN and BLOSSOM in its mark creates a different cadence than when
BEANBLOSSOM is shown as one word.3 Both marks are comprised of ordinary words
with a recognizable pronunciation, and Applicant offers no explanation why they
would be pronounced differently. We also note that both marks appear in standard
characters. This ability to employ any font, size, style, or color when using the mark
could result in use of displays which increase or emphasize the similarities between
the marks. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1909 (Fed. Cir.
2012); In re Davia, 110 USPQ2d 1810, 1814 (TTAB 2014). For example, Registrant
may display its mark as follows: BeanBlossom.
The Examining Attorney also contends that the term BEAN BLOSSOM, whether
written as one or two terms, is arbitrary as applied to either coffee or hard cider, and
rare, seen only in Applicant’s and Registrant’s two marks on the entire Federal

3 7 TTABVUE 12.
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Register.4 In re Opus One Inc., 60 USPQ2d 1812, 1814 (TTAB 2001) (“the evidence of
record pertaining to ‘the number and nature of similar marks in use on similar goods’
is insufficient to support any conclusion other than that registrant’s OPUS ONE
mark for wine is a strong mark which is entitled to a broad scope of protection.”) .
We are unconvinced by Applicant’s argument that the marks have different
connotations because “Registrant's Mark for BEANBLOSSUM primarily refers to
geographic landmarks and areas that are proximate to the owner's facilities.”5 The
registered mark is presumed to be inherently distinctive because it is registered on
the Principal Register. In re Fiesta Palms LLC, 85 USPQ2d 1360, 1363 (TTAB 2007)
cited in In re Fat Boys Water Sports LLC, 118 USPQ2d 1511, 1517 (TTAB 2016).
Collateral attacks on the registration are improper and given no consideration. In re
Dixie Restaurants, Inc., 105 F.3d 1405, 41 USPQ2d 1531 (Fed. Cir. 1997).6
We find that the registered mark BEANBLOSSOM is a strong mark entitled to a
normal scope of protection; that Applicant’s use of a space in the mark BEAN

4 9 TTABVUE 7; October 12, 2018 search summary.
5 7 TTABVUE 13.
6 Moreover, the scant record evidence that there is a place named Beanblossom, Indiana falls
short of demonstrating that the primary significance of the term BEANBLOSSOM to the
public that purchases hard cider is to name a geographic location. Applicant submitted an
undated page from Registrant’s website advertising its BEANBLOSSOM hard cider named
for a “little unincorporated town” where residents “spectacularly create, in a time honored
way, hard cider –carefully, beautifully, passionately … Beanblossom style” and pages from
Google maps showing that Registrant is located within 10 miles of Beanblossom Bottoms
Nature Preserve and Beanblossom Creek. April 17, 2019 Response, TSDR 16-18. Applicant
also submitted an undated Wikipedia entry confirming that there is a Beanblossom Creek,
and an undated online article from Sycamore Land Trust, announcing that Beanblossom
Bottoms was designated a Wetlands of Distinction. Id. at TSDR 10-13. The three references
to BEANBLOSSOM as a geographic place make clear that it is, at most, an obscure
geographic place.
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BLOSSOM is a de minimis change; and that the marks are essentially identical.
When compared in their entireties, the marks create the same visual and aural
impression, have the same connotation, and so create the identical commercial
impression.
This DuPont factor favors finding a likelihood of confusion.
B. Similarity or Dissimilarity of the Goods, Trade Channels,
Classes of Consumers, and Sales Conditions
We next consider the second, third, and fourth DuPont factors, the similarity or
dissimilarity of the services and established, likely-to-continue trade channels as
identified in the application and the cited registration, and the conditions under
which and buyers to whom sales are made.
In considering the second DuPont factor, we note that where almost identical
marks are involved, as is the case here, the degree of similarity between the goods
that is required to support a finding of likelihood of confusion declines. In re Shell Oil
Co., 992 F.2d 1204, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993) (“even when the goods or
services are not competitive or intrinsically related, the use of identical marks can
lead to the assumption that there is a common source”). With nearly identical marks
it is only necessary that there be a “viable relationship between the goods” to support
a finding of likelihood of confusion. In re Thor Tech Inc., 90 USPQ2d 1634, 1636
(TTAB 2009) (“it is sufficient that the goods are related in some manner, or that the
circumstances surrounding their marketing are such, that they would be encountered
by the same persons in situations that would give rise, because of the marks, to a
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mistaken belief that they originate from the same source or that there is an
association or connection between the sources of the goods.”).
We make our determination regarding the similarities between Applicant’s goods
and the registered goods based on how they are identified in the application and
registration. Octocom Sys. Inc. v. Hous. Comput. Servs., Inc., 918 F.2d 937, 16
USPQ2d 1783, 1787 (Fed. Cir. 1990); Canadian Imperial Bank v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1813 (Fed. Cir. 1987). While Applicant’s “coffee” and
Registrant’s “hard cider” identify beverages, merely co-existing under the same broad
category is insufficient to establish the necessary relationship between the goods. In
re W.W. Henry Co., 82 USPQ2d 1213, 1215 (TTAB 2007) (“to demonstrate that goods
are related, it is not sufficient that a particular term may be found which may broadly
describe the goods”); see also, Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367,
63 USPQ2d 1303, 1310 (Fed. Cir. 2002) (stating, in dicta, that “a broad general
market category is not a generally reliable test of relatedness of products”).
We acknowledge Applicant’s detailed Wikipedia articles which describe the
different nature of the beverages.7 More specifically, we note that hard cider is an
alcoholic beverage, that alcoholic beverages include ethanol, one of the world’s most
widely used drugs, and acts as a depressant; while coffee has high concentrations of
caffeine, which is the world’s most widely consumed psychoactive drug, and acts as a
stimulant.8 We note that the articles submitted by Applicant also indicate that

7 7 TTABVUE 34-57; April 17, 2019 Response, TSDR 27-31.
8 7 TTABVUE 34, 38.
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alcoholic drinks are limited to use by adults by law, while coffee with its elevated
caffeine content is only limited to use by adults by the recommendation of the
American Academy of Pediatrics.9 Both alcoholic beverages and coffee have
historically been the subject of legal and religious restriction.10 In comparison to all
beverages, many of which do not include drugs, we find the fact that hard cider and
coffee are beverages which include drugs creates a relationship between them which
supports a finding of likelihood of confusion.
The record includes four third-party marks registered for use in connection with
the same or similar goods as those of both Applicant and Registrant in this case11
Registered Mark Pertinent Registered Goods
Reg. No. 5381909
UBC

Coffee, hard cider
Reg. No. 5713627
UNICORN FUEL

Alcoholic coffee-based beverage, hard
cider
Reg. No. 4522852
Design mark comprised of Chinese
characters

Coffee, hard cider
Reg. No. 86487055
GURKHATISE

Coffee, hard cider

9 7 TTABVUE 34, 42, 52.
10 7 TTABVUE 34, 56, 57
11 October 17, 2018 Office Action, TSDR 196, 205; April 9, 2019 Office Action, TSDR 20, 29-
30.
While we list “coffee-based” beverages, because there is no evidence showing that “coffee-
flavored” beverages include coffee (as opposed to artificial flavorings), we do not include
registrations which list only beverages with coffee flavoring, and we do not include more
than one registration from the same owner.
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“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 re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d,
864 F.2d 149 (Fed. Cir. 1988) (unpublished table decision). Accord In re I-Coat Co.,
LLC, 126 USPQ2d 1730, 1737 (TTAB 2018); In re Sela Prods., LLC, 107 USPQ2d
1580, 1586 (TTAB 2013); In re G.B.I. Tile and Stone, 92 USPQ2d 1366, 1369 (TTAB
2009); In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (TTAB 1993).
The record also includes articles from third party websites showing that coffee
may be a component of hard cider:
The nitrocan carbonation (which has made big inroads in the beer world)
should result in a smooth, velvety pour; Schilling says the coffee cider "pours
like a stout," which we definitely want to see with our own eyes.
Nitro-carbonated cold brew coffee itself has been A Thing for the past few
years-cans are available from Cuvee Coffee' and Stumptown--but this is
certainly the first nitro can of coffee cider we’ve seen, and its yet another
example of cider borrowing from the beer playbook.
Brace yourselves, the first cold-brew coffee nitro hard cider is coming,
DRAFTMAG.COM, December 2, 201912

I was very excited to have the Coffee cider from Stem since earlier that year I
had a Coffee cider from Number 6 Cider in Seattle, Washington. My company
only hired me two months before that trip but that ’s when it occurred to me
the possibilities of ciders. When we did our flight, we also had Stem's Coffee
Cider which I remember asking my friends "can I finish that?"
Hard Cider with Coffee (Batch 2) by Stem Ciders, CIDERSAM.COM, August 14,
201713

12 December 2, 2019 Office Action, TSDR 27.
13 Id. at TSDR 32.
Serial Nos. 88064160
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Although maybe best to save for later in the day (no judgment if not) coffee-
infused ciders provide a caffeine kick and are hitting the market from a
handful of fearless fermenters, each carrying a unique form, from a
nitrogenated can to cold-brew-steeped sippers …
5 coffee-infused ciders to Put a Pep in Your Step, CIDERCRAFTMAG.COM,
September 26, 201614

Applicant contends that “pairs of substantially identical marks for [Applicant’s
goods] and for [the cited goods] on the Federal Trademark Register strongly
suggested to the Board that businesses in these two industries believe that their
respective goods are distinct enough that confusion between even identical marks is
unlikely.”15 However, Applicant did not submit pairs of registrations for the goods at
issue (coffee and hard cider), but pairs of registrations for coffee and beer.16 In re Thor
Tech, Inc., 90 USPQ2d 1634, 1637 (TTAB 2009) (“The third-party registrations do not
support applicant's contention for two reasons. First, none of the registrations are for
trailers per se.”). Because none of the pairs of registrations involve goods identical to
those listed in both the subject application and the cited registration, we find the
evidence irrelevant.
Neither the application nor the cited registration include any restrictions as to
channels of trade, classes of purchasers, or conditions of sale. In re Detroit Athletic
Co., 128 USPQ2d at 1052 (“The third DuPont factor—like the second factor—must be
evaluated with an eye toward the channels specified in the application and

14 Id. at TSDR 23-24.
15 7 TTABVUE 17.
16 7 TTABVUE 99-121.
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registration, not those as they exist in the real world.”); Octocom Sys., Inc. v. Hous.
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.”). The record includes evidence that both hard cider and coffee
overlap in appealing to Millennial consumers, to those interested in locally-sourced
beverages or the environmental impact of beverages:
While a variety of communication and marketing methods is always best
practice, survey results indicate the majority (48 percent) of consumers are
gaining knowledge about hard cider via festivals and only 28 percent via social
media. While creating marketing information keep in mind the strong trend in
cider to follow the craft beer industry with 41 percent of cider consumers most
frequently choosing beer when drinking an alcoholic beverage. This trend also
holds true to consumer preference for a local, apple based product following the
craft beer trend, which places emphasis on ingredient quality and a tie to the
agricultural roots of the product.
Hard Cider Consumer and Producer Trends, WINE & CRAFT BEVERAGE
NEWS (April 22, 2016)17

Some numbers are, however, irrefutably positive. Four percent of legal
drinkers cite cider as their boozy beverage of choice, compared to 1% a decade
ago. Cider controls .4% of the alcoholic beverage category – a small but mighty
number when you consider that it started at .06% a decade and a half ago.
Eight hundred cideries operate in the United States today, more than double
the number three years ago, and many are making major capital investments
and expanding to new markets like, in the case of Oregon’s Reverend Nat’s
Hard Cider, Europe. Baby Boomers and Millennials each drink about 1/3 of the
cider consumed, with men and women drinking about the same.
Hard Cider Sales Slip, FORBES, February 28, 201818

17 April 17, 2019 Response, TSDR 20-24.
18 Id. at TSDR 25.
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Between 2008 and 2016, past day consumption of gourmet coffee beverages
soared from 13% to 36% among 10-24 year olds, and from 19% to 41% for those
25-39.

***
Against this backdrop, for the first time in [National Coffee Distributing
Trends] NCDT history, the prevalence of drip coffee brewers among past day
consumers declined to only half of all coffee drinkers.
***
As many marketers have realized, Millennials, whose purchasing power is
growing (with about $200 billion in purchasing power each year) are
conscientious shoppers, and want to feel good about where they spend money.
They prefer to support companies that reflect their own values on an
organizational level, and products and services which add value to their lives.
According to 2015 research from Nielsen, 66% of surveyed consumers say they
will pay more for products and services that come from companies that are
committed to positive social and environmental impact, up from approximately
half from the previous year.

***
Younger audiences are generally more open to experimenting with new
beverages or preparation methods. This is reflected by the addition of three
new beverages in the 2016 NCDT: the flat white, cold brew, and nitrogen-
infused.
What Are We Drinking? Understanding Coffee Consumption Trends ,
NATIONAL COFFEE, March 19, 201619

See In re Country Oven, Inc., 2019 USPQ2d 443903, *4-5 (TTAB 2019) (“Evidence of
relatedness may include news articles or evidence from computer databases showing
that the relevant goods and services are used together or used by the same
purchasers; advertisements showing that the relevant goods and services are
advertised together or sold by the same manufacturer or dealer; or copies of use-based
registrations of the same mark for both the applicant ’s services and the goods listed
in the cited registration.”).

19 7 TTABVUE 70-73.
Serial Nos. 88064160
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In view of the evidence that hard cider and coffee both include drugs and are best
consumed by adults, that hard cider can include coffee and is registered under the
same mark as coffee, that a segment of consumers for both products focus their
purchasing decisions on locally-sourced beverages or the environmental impact of
beverages, and because they share overlapping channels of trade and consumers, we
find that these DuPont factors also weigh in favor of finding a likelihood of confusion.
C. Conclusion
In conclusion, we have considered all of the arguments and evidence of record, and
all relevant DuPont factors. Insofar as each of the DuPont factors discussed above all
weigh in favor of finding a likelihood of confusion, we conclude that confusion is likely
to occur between Applicant’s marks BEAN BLOSSOM in standard characters for its
coffee and Registrant’s mark BEANBLOSSOM in standard characters for its hard
cider.
II. Decision
The refusal to register Applicant’s mark is affirmed.