Goose Ridge, LLC

Trademark Trial and Appeal Board

Nov 2, 2020

88185293 (T.T.A.B. Nov. 2, 2020)

This Opinion is not a
Precedent of the TTAB

Mailed: November 2, 2020

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Goose Ridge, LLC
_____

Serial No. 88185293
_____

Anne W. Glazer of Stoel Rives LLP
for Applicant, Goose Ridge, LLC.

Marc J. Leipzig, Trademark Examining Attorney, Law Office 115,
Daniel Brody, Managing Attorney.
_____

Before Kuczma, Pologeorgis and Coggins,
Administrative Trademark Judges.

Opinion by Kuczma, Administrative Trademark Judge:
Goose Ridge, LLC (Applicant) seeks registration on the Principal Register of the
mark for “wine,” in International Class 33.1

1 Application Serial No. 88185293 was filed on November 7, 2018, based upon Applicant’s
claim of first use at least as early as April 2011 and first use in commerce at least as early as
August 2011, under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a). The description
of the mark reads as follows: “The mark consists of the letter ‘g’ in lowercase script in
conjunction with a super scripted numeral ‘3’.”
Serial No. 88185293
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Registration of Applicant’s mark was refused under § 2(d) of the Trademark Act,
15 U.S.C. § 1052(d), due to a likelihood of confusion with the following two marks
registered on the Principal Register:
in Registration No. 4199183 owned by G3
Enterprises, Inc. (Registrant G3), for “winery services” in
International Class 402; and
GIII (standard characters) in Registration No. 5279742
owned by Schrader Cellars, LLC (Registrant Schrader), for
“wine” in International Class 33.3
After the Examining Attorney made the refusal final, Applicant appealed to this
Board and requested reconsideration of the refusal, which was denied. The appeal is
fully briefed. For the reasons set forth below, the refusal to register is affirmed.
Likelihood of Confusion
Our determination under § 2(d) is based on an analysis of all probative facts in
evidence that are relevant to the factors bearing on the issue of likelihood of confusion
enunciated in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563,
567 (CCPA 1973), cited in B&B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138,
113 USPQ2d 2045, 2049 (2015); 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

2 Registration No. 4199183 issued on August 28, 2012; Sections 8 & 15 combined declaration
accepted and acknowledged. The description of the mark reads as follows: “The mark consists
of a stylized letter ‘G’ and the number ‘3’.” This registration includes other goods and services
which are not involved in this appeal.

3 Registration No. 5279742 issued on September 5, 2017.
Serial No. 88185293
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between the goods and services. See In re i.am.symbolic, llc, 866 F.3d 1315, 123
USPQ2d 1744, 1747 (Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc.,
308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)); Federated Foods, Inc. v. Ft.
Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976) (“The fundamental
inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”).
We have considered each DuPont factor for which there is evidence and argument
of record. See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed.
Cir. 2019). Varying weights may be assigned to each DuPont factor depending on the
evidence presented. See Citigroup Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344,
98 USPQ2d 1253, 1261 (Fed. Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 26
USPQ2d 1687, 1688 (Fed. Cir. 1993) (“[T]he various evidentiary factors may play
more or less weighty roles in any particular determination.”).
A. Similarity of the Goods and Services, Channels of Trade and Classes of
Consumers
We first consider the DuPont factors involving the similarity of Applicant’s and
Registrants’ goods and services, and their channels of trade and classes of customers.
Inasmuch as the goods covered in Applicant’s application and Registrant
Schrader’s Registration No. 5279742, are “wine,” those goods are identical. Absent
any restrictions in an application or registration, identical goods are presumed to
travel in the same channels of trade to the same class of customers. Cai v. Diamond
Hong, Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (“With respect to
similarity of the established trade channels through which the goods reach
Serial No. 88185293
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customers, the TTAB properly followed our case law and ‘presume[d] that the
identical goods move in the same channels of trade and are available to the same
classes of customers for such goods….’”) (citing In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012)); In re Yawata Iron & Steel Co., 403 F.2d 752,
159 USPQ 721, 723 (CCPA 1968) (where there are legally identical goods, the
channels of trade and classes of purchasers are considered to be the same).
Accordingly, with respect to Registration No. 5279742 for the mark GIII, the
DuPont factors regarding the similarity of the goods, as well as the trade channels
and customers, strongly favor a finding of likelihood of confusion.
Turning to Registrant G3’s Registration No. 4199183 for winery services, a
“winery” is defined as “a wine-making establishment.”4 The Trademark ID Manual5
entry for “winery services” states: “As with all services, this must be done for others.
Making one’s own wine is not a service under the Trademark Act. 06-15-2017: Winery

4 “Winery.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-
webster.com/dictionary/winery © 2020 Merriam-Webster, Incorporated. Accessed October 28,
2020. The Board may sua sponte take judicial notice of dictionary definitions, Univ. of Notre
Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d
1372, 217 USPQ 505 (Fed. Cir. 1983), including definitions in 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).
5 The ID Manual comprises a listing of acceptable identifications of goods and services
properly classified in accordance with the current edition of the Nice Classification that is
compiled by the Office of the Administrator for Trademark Classification Policy and Practice.
The listing is not exhaustive, but is intended to serve as a guide to examining attorneys in
acting on applications and to the public in preparing applications. In a TEAS Plus
application, the application must include correctly classified goods and/or services, with an
identification of goods and/or services taken directly from the USPTO ID Manual, available
through the TEAS Plus form. The ID Manual can be viewed from the USPTO website at
http://www.uspto.gov/id-master-list-public.html. TRADEMARK MANUAL OF EXAMINING
PROCEDURE (TMEP) § 1402.04 (Oct. 2018).

Serial No. 88185293
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services is acceptable wording in Class 40 without further specification because it is
considered to refer to wine making services for others, pursuant to the common
definition of a winery as ‘a distillery where wine is made.’”
The Examining Attorney submitted 18 third-party use-based registrations for
marks registered in connection with wine and winery services, the same or similar
goods and services as those of Applicant and Registrants6:

Reg. No. Mark Goods and/or Services (non-
exhaustive)
5534920 SEVEN SPRINGS WINERY “wine” in International Class 33 and
“winery services” in International
Class 40
5292279 RANCH AT THE END OF THE
ROAD
“wine” in International Class 33 and
“vineyard and winery services, namely,
the cultivation of grapes for others” in
International Class 44
5734373 BRIX & COLUMNS
VINEYARDS
“wines” in International Class 33 and
“winery services” in International Class
40
5437219 MAKE WINE WITH US “alcoholic beverage, namely, wine” in
International Class 33 and “winery
services” in International Class 40
5672173 SMOKY MOUNTAIN WINERY “wine” in International Class 33 and
“winery services” in International
Class 40
5526230 TERRA NONNO WINERY “wine” in International Class 33 and
“winery services” in International
Class 40
5506652 PLUMPJACK “wine, brand spirits and distilled spirits”
in International Class 33 and “winery
services” in International Class 40
5397479 STORY OF SOIL “wine” in International Class 33 and
“winery services” in International
Class 40

6 See September 9, 2019 Office Action. Applicant acknowledges that some of the cited
Registrations were registered before the date of the June 15, 2017 notation made to the listing
in the ID Manual.
Serial No. 88185293
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Reg. No. Mark Goods and/or Services (non-
exhaustive)
5357574 TASTE WISCONSIN “wines” in International Class 33 and
“winery services” in International Class
40
5315597 GERVASI VINEYARD “wine” in International Class 33 and
“winery services” in International
Class 40
5305649 OLD TOWN CELLARS “wine” in International Class 33 and
“winery services” in International
Class 40
5240142 M CELLARS “wines” in International Class 33 and
“winery services and production of
wine” in International Class 40
5216554 BRADSHAW VINEYARDS “wine” in International Class 33 and
“vineyard and winery services,
namely, the cultivation of grapes for
others” in International Class 44
5146578 WAYVINE “red wine; white wine” in
International Class 33 and “vineyard
and winery services, namely, the
cultivation of grapes for others” in
International Class 44
5023958 DEKREMER “wines” in International Class 33 and
“winery services” in International
Class 40
4831818 UMBRA “wine” in International Class 33 and
“winery services” in International
Class 40
4947017 W WEST WINERY “wines; grape wines; fruit wines” in
International Class 33 and “winery
services” in International Class 40
5590716 HEART WOOD “wine” in International Class 33 and
“winery services” in International
Class 40

Serial No. 88185293
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Additionally, the Examining Attorney submitted evidence of third-party websites
showing that the same entity commonly provides the relevant goods and services,
marketing them under the same marks7:
• Ballentine Vineyards
www.ballentinevineyards.com: wine at TSDR 5, www.wine
business.com: grapes at TSDR 6;

• Capo Creek
www.capocreekranch.com: wine at TSDR 7-8, www.wine
business.com: grapes at TSDR 9;

• Coyote Canyon
www.coyotecanyonwinery.com: wine at TSDR 15; www.coyote
canyonvineyard.com: grapes at TSDR 10-14;

• DEOL Family Estate Winery
www.deolestatewinery.com: wine at TSDR 17; grapes at TSDR
16;

• Tzabaco Rancho Vineyards
www.estate1856.com: wine by Tzabaco Vineyards at TSDR 20-21;
www.drycreekgrapes.com: grapes at TSDR 18-20;

• Essere Franco
www.esserefranco.com: wine at TSDR 24; grapes at TSDR 22-23

• Great Bear
www.greatbearvineyards.com: wine at TSDR 26-27, grapes at
TSDR 25;

• Martellotto Winery
www.martellotto.com: wine at TSDR 30, craft wine, bottles, style
and label TSDR 28-29;

• Martian Ranch & Vineyard

7 April 2, 2020 Denial of Request for Reconsideration, at TSDR 5-42.
The TTABVUE and Trademark Status & Document Retrieval (“TSDR”) citations refer to the
docket and electronic file database for the involved application. All citations to the TSDR
database are to the downloadable .PDF version of the documents.
Serial No. 88185293
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www.martianvineyard.com: wine at TSDR 31, winebusiness.com:
grapes at TSDR 32-33;

• Red Fox Winery & Vineyards
www.redfoxwinery.com: wine at TSDR 35-36, grapes and bulk
juice or wine at TSDR 34;

• Scheid Family Wines
www.scheidvineyards.com: wine at TSDR 37-38,
www.scheidwinery.com: winemaking services TSDR 39-42.

This evidence shows that the same entities not only offer wine but are likewise
involved in the making of wine for others, including supplying the grapes for making
wine by others. Additionally, this evidence also supports use of the same mark for use
by the same classes of customers in the same trade channels.
As to the third-party registrations, Applicant does not challenge their validity.8
Rather, Applicant maintains there is no evidence that the owners of the submitted
third-party registrations and websites actually engage in rendering of winery
services.9 Applicant contends that the Examining Attorney “has not put forth the
required amount of evidence to establish that wine is related to winery services,”
arguing that none of the third-party registrations or third-party websites submitted
by the Examining Attorney “demonstrate use of the same mark by a single party on
both wine and wine making services. Rather, they show that various wineries use
trademarks in connection with their core goods, i.e., wine and that those wineries
engage in various promotional and sales activities in connection therewith.”10

8 Applicant’s Appeal Brief p. 12 (8 TTABVUE 17).
9 Applicant’s Appeal Brief p. 10 (8 TTABVUE 15).
10 Applicant’s Appeal Brief p. 10 (8 TTABVUE 15).
Serial No. 88185293
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Under § 7 of the Trademark Act, a certificate of registration on the Principal
Register is prima facie evidence of the validity of the registered mark and of the
registration of the mark, of the registrant’s ownership of the mark, and of the
registrant’s exclusive right to use the registered mark in commerce on or in
connection with the goods or services specified in the certificate. 15 U.S.C. § 1057(b).
Thus, the third-party registrations are prima facie evidence of the registrants’
exclusive right to use their registered marks in connection with the goods and services
identified in their registrations. To the extent that Applicant is contesting the third-
party registrants’ rights as to the services identified in their registrations, that is not
something that can be determined in this proceeding where the registrants are not
parties.
While these third-party registrations are not evidence that the marks shown
therein are in commercial use, or that the public is familiar with them, such
registrations that individually cover a number of different items and services and are
based on use in commerce have probative value to the extent that they serve to
suggest that the listed goods and services are of a kind that may emanate from a
single source under a single mark. In re I-Coat Co., 126 USPQ2d 1730, 1737 (TTAB
2018); In re Aquamar, Inc., 115 USPQ2d 1122, 1126 n.5 (TTAB 2015) (citing In re
Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470 n.6 (TTAB 1988), aff’d, 864 F.2d 149
(Fed. Cir. 1988)). Here, the totality of the third-party use and third-party registration
evidence demonstrates that consumers have come to expect that these goods and
services emanate from the same sources.
Serial No. 88185293
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The winery services in Registrant G3’s registration need not be identical or even
competitive with Applicant’s goods to find a likelihood of confusion. See On-line
Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir.
2000); Recot, Inc. v. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1898 (Fed. Cir. 2000).
They need only be “related in some manner and/or if the circumstances surrounding
their marketing are such that they could give rise to the mistaken belief that [the
goods and/or services] emanate from the same source.” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-
Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). The issue is not
likelihood of confusion between the particular goods and services, but likelihood of
confusion as to the source or sponsorship of those goods and services. Majestic
Distilling, 65 USPQ2d at 1205; Shell Oil, 26 USPQ2d at 1689.
In view of the foregoing, we find that Applicant’s goods and Registrant G3’s
services are closely related, travel in the same channels of trade, and are offered to
the same classes of purchasers, thus supporting a likelihood of confusion under the
second and third DuPont factors.
B. Similarity of the Marks
It is well settled that marks are compared in their entireties for similarities in
appearance, sound, connotation and commercial impression. Stone Lion Capital
Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1160 (Fed. Cir.
2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En
Serial No. 88185293
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1772, 396 F. 3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005)); Viterra, 101 USPQ2d
at 1908.
Where the goods of an applicant and a registrant are identical, as they are in this
case with respect to the goods in Registrant Schrader’s cited Registration for the mark
GIII, the degree of similarity between the marks required to support a finding of
likelihood of confusion is not as great as would be required with diverse goods. In re
Viterra, 101 USPQ2d at 1908; Coach Servs. v. Triumph Learning, 101 USPQ2d at
1721; Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d
1698, 1700 (Fed. Cir. 1992).
Applicant acknowledges that Registrant Schrader’s mark, GIII, is in standard
characters,11 having a numeral three that “is in Roman Numeral format.” Because
Applicant’s mark uses the Arabic numeral “3,” Applicant argues that “consumers will
not confuse the difference between the Roman numeral systems vs. the Hindu-Arabic
system: ‘III’ vs ‘3’ do not look remotely similar.”12

11 Because Registrant Schrader’s mark GIII is registered in standard characters, the letter
“G” in its mark could be displayed in the same manner as the “g” in Applicant’s mark. See
SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (“[T]he argument
concerning a difference in type style is not viable where one party asserts rights in no
particular display. By presenting its mark merely in a typed drawing, a difference cannot
legally be asserted by that party.”); In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181, 1186-
87 (TTAB 2018).
12 August 12, 2019 Response to Office Action at TSDR 9.
Serial No. 88185293
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As to Registrant G3’s mark , Applicant contends that the mark is
“highly stylized; its bold lettering, unique type style, and interlocking ‘G’ and ‘3’ all
impart significant design flourishes” differing from Applicant’s mark including13:
 Applicant’s mark displays the letter “g” in lowercase
script; Registrant G3’s mark displays an upper case
“G”
 Applicant’s mark uses a superscript numeral “3”
(also known as an exponent); Registrant G3 uses a
“standard numeral three”
 The “3” in Applicant’s mark is only half the size of
the lowercase “g” in the mark; by contrast, the “3” in
Registrant G3’s mark is equal in size to the letter
“G” and therefore comprises half of the entire mark.
This difference is even more striking because the “3”
appears adjacent to a capital letter “G”
 The letter and numeral in Applicant’s mark is
displayed “in a cursive, flowing fashion, with
undulations and curves linked together, creating an
informal, vertically symmetrical, looping effect;” by
contrast Registrant G3’s mark “displays big, spidery
lettering and severe straight lines;” and the “G” in
the mark comes close to appearing as a “C.”
Thus, Applicant concludes that the marks are each so stylized in unique ways as to
easily be distinguishable by “average purchasers who retain only a general
impression of the marks.”14
Applicant also contends that the marks sound distinctly different. Because
Applicant’s Mark is the letter “g” with the superscript “3,” Applicant argues that

13 Applicant’s Appeal Brief p. 5 (8 TTABVUE 10).
14 Applicant’s Appeal Brief p. 6 (8 TTABVUE 11).
Serial No. 88185293
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“purchasers are likely to pronounce the mark as ‘g to the third’ or perhaps ‘g cubed’
following basic principles of exponents that American purchasers generally learn in
elementary school math class.” By contrast, Registrant G3’s mark “will be
pronounced ‘G three’” and Registrant Schrader’s mark GIII “will be pronounced ‘G
three,’ or perhaps ‘G eye eye eye’ for those that think of each ‘I’ as the letter ‘I’ rather
than part of the Roman numeral ‘III.’” Thus, Applicant concludes, that “when the
marks are spoken in their entirety, it’s clear they do not sound at all similar.”15
Looking at the marks in their entireties: Applicant’s mark , Registrant G3’s
mark , and Registrant Schrader’s mark GIII, are similar in sound as they are
comprised of the same two components in the same order, the letter “G” in the first
position (pronounced the same in each mark), followed by the number 3. Inasmuch
as “III” is the Roman numeral for the Arabic number 3,16 Applicant’s mark and the
cited marks all convey the number 3. While Applicant contends that its mark may be
pronounced “g to the third” or “g cubed” and, Registrant Schrader’s mark may be
pronounced “G three” “or perhaps “G eye eye eye,”17 all three marks may be

15 Id.
16 We take judicial notice of the definitions of “Arabic numeral (noun): any of the number
symbols 0, 1, 2, 3, 4, 5, 6, 7, 8, 9.” and “Roman numeral (noun): a numeral in a system of
notation that is based on the ancient Roman system.” See merriam-webster.com/diction
ary/Arabic%20numeral and https://www.merriam-webster.com/dictionary/Roman%20nume
ral, © 2020 Merriam-Webster, Incorporated. October 28, 2020.
17 Applicant’s Appeal Brief p. 6 (8 TTABVUE 11).
Serial No. 88185293
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pronounced simply as “G 3.”18 Applicant has offered no evidence of the alternative
pronunciations in context with the marks. Nonetheless, that Applicant’s mark and
Registrant Schrader’s mark have other possible pronunciations does not change that
they may also have exactly the same pronunciation.
Even if its mark and the cited marks could be pronounced identically, Applicant
contends that this would not be dispositive of the likelihood of confusion analysis
because Applicant’s mark “consists of highly stylized letters and is therefore in the
gray region between pure design marks which cannot be vocalized and word marks
which are clearly intended to be,” citing In re Tsi Brands, Inc., 67 USPQ2d 1657, 1662
TTAB 2002) (citing Georgia-Pac. Corp. v. Great Plains Bag Co., 614 F.2d 757, 204
USPQ 697, 699 (CCPA 1980)).19 Applicant’s mark is comprised of the letter “g” next
to a superscript “3” in a simple, stylized font. Applicant’s citation to Tsi Brands for
the notion that “even if the letter portion of a design mark could be vocalized, that
was not dispositive of whether there would be likelihood of confusion. A design is
viewed, not spoken, and a stylized letter design can not [sic] be treated simply as a
word mark. (internal citations omitted),”20 does not assist it in this case. Applicant’s
mark , unlike the marks at issue in the Tsi Brands ( ) and Georgia-Pacific
( ) cases, is not a “highly stylized” mark.

18 Whether the mark is shown as “G 3” or “g 3” the sound is exactly the same.
19 Applicant’s Appeal Brief pp. 6-7 (8 TTABVUE 11-12).
20 See Applicant’s Appeal Brief p. 7 (8 TTABVUE 12) referring to TSI Brands, 67 USPQ2d at
1662 (citing In re Electrolyte Labs. Inc., 913 F.2d 930, 16 USPQ2d 1239, 1240 (Fed. Cir. 1990)
(internal cite omitted)).
Serial No. 88185293
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Referring to the specimen of use for Registrant Schrader’s GIII mark, Applicant
argues that the pronunciation of its mark and Registrant Schrader’s GIII mark,
which are both for wine, must be considered in the context of how they are used in
connection with their house mark or brand name because the brand name or house
mark is usually better known to the average wine purchaser.21 Regardless of whether
the specimens of use submitted for Registrant Schrader’s mark show use of the brand
name “Schrader” in much larger type than the mark GIII, it is the marks of
Registrant Schrader and Applicant as registered and filed, not as used, which must
be considered. See In re Microsoft Corp., 68 USPQ2d 1195, 1198 (TTAB 2003);
Interstate Brands Corp. v. McKee Foods Corp., 53 USPQ2d 1910, 1914-15 (TTAB
2000) (When neither the applied-for mark nor a cited registered mark includes a
house mark, “determination of likelihood of confusion must be based on the specific
marks at issue.”). Thus, the use of the marks in connection with a house mark or
brand name is not pertinent to our consideration of Applicant’s ability to register its
mark in view of Registrant Schrader’s mark.
Turning to the commercial impression of its mark versus the cited marks,
Applicant contends that when the marks “are compared in their entireties, it is clear
they evoke completely different commercial impressions.”22 While Applicant contends
that its mark “creates an informal and math-centric commercial impression and
creates the appearance of being plucked out of a mathematical equation,” it offers no

21 Applicant’s Appeal Brief p. 7 (8 TTABVUE 12).
22 Applicant’s Appeal Brief p. 8 (8 TTABVUE 13).
Serial No. 88185293
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support that its mark used as a trademark for wine would create “an informal and
math-centric commercial impression” in the minds of potential customers. To the
extent that the marks combine the letter “G” with the equivalent of the number 3,
the commercial impressions of the marks are, at a minimum, similar.
Although Applicant’s and Registrants’ marks are somewhat different in
appearance, they can be pronounced the same resulting in the same sound.
Additionally, the use of an upper- or lower-case “G” followed by an Arabic or Roman
“3” results in marks that have the same or similar meaning. Only when Applicant’s
and Registrants’ marks are compared side-by-side visually, do their different
presentations become apparent.
When comparing marks, the test is not whether the marks can be distinguished
in a side-by-side comparison, but rather whether the marks are sufficiently similar
in terms of their overall commercial impression that confusion as to the source of the
goods offered under the respective marks is likely to result. Cai v. Diamond Hong,
127 USPQ2d at 1801 (citing Coach Servs. v. Triumph Learning, 101 USPQ2d at
1721); In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB 2016). The proper
focus is on the recollection of the average purchaser, who retains a general rather
than specific impression of trademarks. Bay State Brewing, 117 USPQ2d at 1960
(citing Spoons Rests. Inc. v. Morrison Inc., 23 USPQ2d 1735, 1741 (TTAB 1991), aff’d
per curiam, 972 F.2d 1353 (Fed. Cir. 1992)); In re C.H. Hanson Co., 116 USPQ2d
1351, 1353 (TTAB 2015) (citing Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107
USPQ2d 1424, 1430 (TTAB 2013)).
Serial No. 88185293
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To the extent that purchasers notice the differences in the marks, they are likely
to believe that Applicant’s mark is a version of either of Registrants’ marks, or that
it represents a product line extension of Registrants’ goods or services. Even those
purchasers who are aware of the specific differences between the marks may well
believe, because of the similarities between them, that the marks are simply variants
of one another, used by a single producer to identify and distinguish companion lines
of products and related services. In re Great Lakes Canning, Inc., 227 USPQ 483, 485
(TTAB 1985).
Therefore, in view of the similarities in sound, meaning and commercial
impression, Applicant’s mark does not avoid likelihood of confusion with the cited
marks. Thus, this factor supports a finding of likelihood of confusion.
C. Purchasing Decisions and Customer Sophistication
Applicant contends that “the circumstances underlying the parties’ respective
goods and services tend to indicate that the goods and services will be purchased with
a certain amount of care and thought.” In support, Applicant submits evidence
attempting to distinguish the purchase price of Applicant’s and Registrant Schrader’s
wines.23 However, the cost of their wines is not reflected in the descriptions of
Applicant’s or Registrant Schrader’s goods. Where, as in this case, the goods in the
application are broadly described and there are no limitations in the identification of
goods as to their nature, type, channels of trade or classes of purchasers, it is

23 See Applicant’s Appeal Brief p. 16 (8 TTABVUE 21).
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presumed that the scope of the application encompasses all goods of the nature and
type described, that Applicant’s goods move in all channels of trade that would be
normal for such goods, and that Applicant’s goods would be purchased by all potential
customers. In re Elbaum, 211 USPQ 639, 640 (TTAB 1981), citing Kalart Co., Inc. v.
Camera-Mart, Inc., 258 F.2d 956, 119 USPQ 139 (CCPA 1958); see also In re La
Peregrina Ltd., 86 USPQ2d 1645, 1647 (TTAB 2008) (“. . . it is the identification of
goods that controls, not what extrinsic evidence may show about the specific nature
of the goods.”). Moreover, an applicant may not restrict the scope of the goods covered
in the cited registration by argument or extrinsic evidence. In re FCA US LLC, 126
USPQ2d 1214, 1217 (TTAB 2018), aff’d per curiam, 777 F. App’x 516 (Fed. Cir. 2019);
La Peregrina, 86 USPQ2d at 1647; In re Opus One Inc.,60 USPQ2d 1812, 1817 (TTAB
2001) (while the applicant “offered evidence to show that registrant’s OPUS ONE
wine is an expensive wine... ‘wine’ must be presumed to encompass inexpensive or
moderately-price wine.”); In re Sailerbrau Franz Sailer, 23 USPQ2d 1719, 1720
(TTAB 1992) (finding that all purchasers of wine may not 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). Thus, the cost of Applicant’s and
Registrant Schrader’s wines does not matter. Even if the cost of the wines was
considered, the broad description of “wine” in Registrant Schrader’s registration
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covers wines offered at all price points, including Applicant’s price point. Further, we
must consider the least sophisticated consumer in the relevant class. See Stone Lion
Capital v. Lion Capital, 110 USPQ2d at 1163-64 (recognizing Board precedent
requiring consideration of the “least sophisticated consumer in the class”).
In attempting to differentiate Applicant’s wines from Registrant G3’s winery
services, Applicant asserts that the average purchaser of winery services “is likely to
be a business that is looking to arrange for wine to be made, bottled, corked, labeled,
stored, and so on, likely pursuant to a contract entered into at a significant price,”
concluding “the most average purchaser of such services . . . must be sophisticated
enough to distinguish differences in sources of those goods.”24 However, Applicant’s
argument is based on conclusions that are not supported by any evidence in the record
and therefore, do not factor into our decision. Moreover, the evidence indicates at
least some of the third-party trademark owners providing winery services offer their
services to individuals and small businesses who are likely not spending a significant
amount in such limited endeavors.25
Applicant concludes that “due to the discriminating nature of the relevant
consumer class of the parties’ respective products, it is unlikely that the goods offered
under Applicant’s mark will be confused with the goods and services offered under

24 Applicant’s Appeal Brief p. 17 (8 TTABVUE 22).
25 Denial of Request for Reconsideration, see Great Bear at TSDR 25 (offering services to
home winemakers), Martellotto at TSDR 28 (promoting use of services for various purposes
including friends, family and gifts) and Scheid at TSDR 40 (offering services to small estate
clients).
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the cited marks or vice versa.”26 The fact that purchasers are sophisticated or
knowledgeable in a particular field does not does not necessarily mean that they are
sophisticated or knowledgeable in the field of trademarks or immune from source
confusion arising from the use of confusingly similar marks on or in connection with
the goods and services. Even sophisticated consumers could be led to the mistaken
belief that the goods and services originate from the same source. See Shell Oil, 26
USPQ2d at 1690; In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1204 (TTAB 2009);
In re Cynosure Inc., 90 USPQ2d 1644, 1647 (TTAB 2009) (citing Wm. K. Stamets Co.
v. The Metal Prods. Co., 176 USPQ 92, 93 (TTAB 1972) (even technically trained
purchasers who are extremely familiar with expensive machinery may be confused
when similar marks are used with respect to the same goods)). Further, where the
purchasers consist of both professionals and the public, the standard of care for
purchasing the goods is that of the least sophisticated potential purchaser. FCA US,
126 USPQ2d at 1222 (citing Stone Lion Capital v. Lion Capital, 110 USPQ2d at 1163).
Based on the foregoing, this factor is neutral.
D. Conclusion
Applicant’s mark and Registrants’ marks and GIII are similar with
respect to sound and meaning; each of the marks feature the letter “G” followed by
an Arabic or Roman “3.” Given that Applicant’s goods are identical to Registrant
Schrader’s goods, and related to Registrant G3’s services, the letter “G” followed by

26 Applicant’s Appeal Brief p. 17 (8 TTABVUE 22).
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an Arabic or Roman “3” as used in each mark yields a similar commercial impression.
Therefore, we find a likelihood of confusion exists between Applicant’s mark and the
cited marks for the identified goods and services.
Decision: The refusal to register Applicant’s mark under § 2(d) of the
Trademark Act is affirmed.