Revolver Brewing, LLC

Trademark Trial and Appeal Board

May 28, 2021

88623708 (T.T.A.B. May. 28, 2021)

This Opinion is not a
Precedent of the TTAB

Mailed: May 28, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Revolver Brewing, LLC
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Serial No. 88623708
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Megan Q. Peccarelli of Quarles & Brady LLP,
for Revolver Brewing, LLC.
Anicka Purath, Trademark Examining Attorney, Law Office 101,
Zachary R. Sparer, Managing Attorney.
_____

Before Taylor, Wellington and Kuczma,
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Revolver Brewing, LLC (“Applicant”) seeks registration on the Principal Register
of the standard character mark BACKYARD BEE for goods identified as “Beer,” in
International Class 32.1
The Trademark Examining Attorney refused registration of Applicant’s mark
under Trademark Act Section 2(d), 15 U.S.C. §1052(d), based on a likelihood of

1 Application Serial No. 88623708 was filed on September 19, 2019, 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).
Serial No. 88623708
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confusion with the mark in Registration No. 5294231, BACKYARD IPA (registered
on the Principal Register in standard characters) for “beer; ale; India pale ale,” in
International Class 32.2 IPA has been disclaimed.
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 affirm.
I. Evidentiary Objections/Applicant’s Request for Judicial Notice
Applicant attached to its brief the materials detailed below to which the
Examining Attorney has objected as untimely. We note initially that the record in an
application should be complete prior to the filing of an appeal. Trademark Rule
2.142(d), 37 C.F.R. § 2.142(d); In re Fitch IBCA Inc., 64 USPQ2d 1058, 1059 n.2
(TTAB 2002).
Applicant nonetheless requests the Board take judicial notice of “certain facts,”
and presumably the accompanying evidence, including:
 Definitions from the online MERRIAM-WEBSTER dictionary of the words “honey”
and “bee;”3 and

 that honey is a commonly-used flavor or component of beer and, as support, a
screenshot of “honey beers” retrieved from a search of the Google search
engine;4 and copies of thirteen (13) third-party applications and registrations

2 Issued September 26, 2017.
3 www.merriam-webster.com/dictionary/honey; www.merriam-webster.com/dictionary/bee,
both last visited December 29, 2020. 4 TTABVUE 24-34 (Exhs. A and B). Although Applicant
also cites to two CAMBRIDGE dictionary definitions, they were not made of record.
Page references herein to the application record are to the downloadable .pdf version of the
USPTO’s Trademark Status & Document Retrieval (TSDR) system. References to the briefs
and orders on appeal are to the Board’s TTABVUE docket system.
4 www.google.com/search?q=honey+beer&rlz=1C1GCEA_enUS865US865&source
Serial No. 88623708
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taken from the TSDR database for marks including the disclaimed word
“honey” for beer.5
However, 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.”
Fed. R. Evid. 201(b). See also TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF
PROCEDURE (“TBMP”) § 704.12 (2020), and the authorities cited therein. For example,
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).
Accordingly, with respect to the words “honey” and “bee,” we take judicial notice of
their definitions.
We deny Applicant’s request that we take judicial notice of the fact that “honey”
is commonly used as a beer ingredient because, contrary to Applicant’s contention, it
is not the type of fact whose accuracy cannot reasonably be questioned, nor do the
supporting web pages showing “honey beers” contain facts that are generally known,
as contemplated by Fed. R. Evid. 201(b)(2). See UMG Recordings, Inc. v. Mattel, Inc.,

=lnms&tbm=shop&sa=X&ved=2ahUKEwjjtK7Rv-DtAhVTbc0KHcEzBQQ_
AUoAXoECBQQAw&biw=1504&bih=892, last visited December 29, 2020. 4 TTABVUE 35-
39 (Exh. C).

5 4 TTABVUE 41-78 (Exh. D).
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100 USPQ2d 1868, 1874 (TTAB 2011) (rejecting request for judicial notice of web
pages); cf. In re Jimmy Moore LLC, 119 USPQ2d 1764, 1768 (TTAB 2016) (on appeal,
the Board will not take judicial notice of statements from commercial websites that
do not constitute dictionary definitions).
We also decline, to the extent Applicant requests, to take judicial notice of third-
party applications and registrations showing that the word “honey” has been
disclaimed in HONEY-formative marks. It is well established that the Board does not
take judicial notice of records residing in the Patent and Trademark Office. See e.g.,
In re MK Diamond Prods., 2020 USPQ2d 10882, *1 n.5 (TTAB 2020) (citing In re
Jonathan Drew Inc., 97 USPQ2d 1640, 1644 n.11 (TTAB 2011)).6
Applicant could have requested remand to make additional evidence of record, but
did not. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d) (“If the appellant or the
examining attorney desires to introduce additional evidence after an appeal is filed,
the appellant or the examining attorney should submit a request to the Board to
suspend the appeal and to remand the application for further examination.”). See
also, In re Max Capital Group Ltd., 93 USPQ2d 1243, 1244 n.4 (TTAB 2010) (noting
that an applicant may request remand if it wishes to make additional evidence of
record).
In sum, we grant Applicant’s request for judicial notice insofar as it pertains to
the definitions of “honey” and “bee,” but otherwise deny its request and give no

6 We add that even if the third-party applications were properly of record, pending
applications are evidence only of the fact that they have been filed. In re Toshiba Med. Sys.
Corp., 91 USPQ2d 1266, 1270 n.8 (TTAB 2009).
Serial No. 88623708
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consideration to the materials designated as Exhibits C and D to Applicant’s brief,
which were not timely submitted during prosecution. 37 C.F.R. § 2.142(d).
Accordingly, only the definitions have been added to the proceeding record.
II. Section 2(d) Refusal
A. Applicable Law
Section 2(d) of the Trademark Act prohibits registration of a mark that so
resembles a registered mark as to be likely, when used on or in connection with the
goods or services of the applicant, to cause confusion, mistake, or deception. 15 U.S.C.
§ 1052(d). Our determination of likelihood of confusion under Section 2(d) is based on
an analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973). In any likelihood of confusion analysis, two key
considerations are the similarities between the marks and the similarities between
the goods or services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d
1098, 192 USPQ 24 (CCPA 1976). We discuss below these and other relevant factors.
See In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019)
(Board considers each DuPont factor for which there is evidence and argument).
B. Relatedness of the Goods, Trade Channels and Classes of Purchasers
We begin our analysis with the second DuPont factor, “the similarity and nature
of the goods … as described in an application or registration….” DuPont, 177 USPQ
567. Applicant’s identified “beer” is identical to Registrant’s identified “beer” and
otherwise closely related to Registrant’s identified “ale” and “India pale ale.” See In
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re Bay State Brewing Co., 117 USPQ2d 1958, 1959 (TTAB 2016) (“The goods are
identical insofar as the identifications in the application and in the cited registration
both include ‘beer.’ The remaining goods in the cited registration, ‘ale’ and ‘lager,’ are
otherwise closely related to, and in fact are types of beer.”).
Because the goods are identical, and there are no limitations as to channels of
trade or classes of purchasers in the respective identifications, we presume that
Applicant’s and Registrant’s beer will be offered via the same channels of trade to the
same classes of consumers. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908
(Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and
classes of consumers, the Board was entitled to rely on this legal presumption in
determining likelihood of confusion). Indeed, “Applicant does not contest that the
goods covered by the Application and the Cited Mark are, for all intents and purposes,
nearly identical and that the goods travel in the same channels of trade to the same
types of consumers.” Applicant’s brief p. 10.7
We thus find the DuPont factors concerning the relatedness of the goods, trade
channels and classes of consumers strongly favor a finding of likelihood of confusion.
C. The Marks
Under the first DuPont factor, the marks in their entireties are compared 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,

7 8 TTABVUE 11.
Serial No. 88623708
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1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1691 (Fed. Cir. 2005). We
are mindful that in comparing the marks, “[t]he proper test is not a side-by-side
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.” In re i.am.symbolic, llc,
866 F.3d 1315, 123 USPQ2d 1744, 1748 (Fed. Cir. 2017); Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir. 2012). The
proper focus is on the recollection of the average customer, who retains a general
rather than specific impression of the marks. L’Oreal S.A. v. Marcon, 102 USPQ2d
1434, 1438 (TTAB 2012); Winnebago Industries, Inc. v. Oliver & Winston, Inc., 207
USPQ 335, 344 (TTAB 1980); Sealed Air Corp. v. Scott Paper Co., 190 USPQ 106, 108
(TTAB 1975). The average customers include ordinary beer drinkers.
Because the similarity or dissimilarity of the marks is determined 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 them. In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749,
751 (Fed. Cir. 1985). On the other hand, different features may be analyzed to
determine whether the marks are similar. Price Candy Co. v. Gold Medal Candy
Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955). Therefore, “in articulating
reasons for reaching a conclusion on the issue of confusion, there is nothing improper
in stating that, for rational reasons, more or less weight has been given to a particular
Serial No. 88623708
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feature of a mark, provided the ultimate conclusion rests on consideration of the
marks in their entireties.” In re Nat’l Data, 224 USPQ at 751. That is, one feature of
a mark may be more significant or dominant in creating a commercial impression.
See In re Viterra 101 USPQ2d at 1908.
Since the goods are identical, the degree of similarity between the marks
necessary to find likelihood of confusion need not be as great as where there is a
recognizable disparity between the goods. In re Bay State Brewing, 117 USPQ2d at
1960; Coach Servs. v. Triumph Learning 101 USPQ2d at 1722.
We compare Applicant’s BACKYARD BEE mark with the cited mark BACKYARD
IPA. BACKYARD is the dominant portion of the cited mark because the abbreviation
IPA (denoting “India pale ale”8) has no source-indicating significance; IPA being
generic for a good identified in the cited registration and disclaimed. As such, the
abbreviation 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). Applicant does not contest this finding.9
On comparison, we find the marks similar in that the first word of each is
BACKYARD. As the first portion of each mark, BACKYARD is most likely “to be
impressed upon the mind of the purchaser and remembered.” 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

8 December 9, 2019 Office Action, TSDR 6 (www.ahdictionary.com/word.search.html?q=IPA).
9 8 TTABVUE 14 (Applicant’s brief p. 13).
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remembered”). See also Palm Bay Imps. 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). The addition of BEE to Applicant’s mark does not suffice to
distinguish the mark. The overall connotation of the mark, i.e., conjuring a bee in the
backyard, remains very similar to that of Registrant’s mark of “the backyard.”
Likelihood of confusion is not necessarily avoided between otherwise confusingly
similar marks merely by adding other distinctive matter. If an important portion of
both marks is the same, then the marks may be confusingly similar notwithstanding
peripheral differences. See In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1271
(TTAB 2009) (holding VANTAGE TITAN for MRI diagnostic apparatus, and TITAN
for medical ultrasound device, likely to cause confusion, noting that the marks are
more similar than they are different).
Despite the common first terms, Applicant argues that the marks, in their
entireties, create vastly different commercial impressions, explaining that:
Although the marks share the term “BACKYARD,” the
commercial impression created by Applicant’s Mark is
distinguishable because (1) U.S. consumers have very
strong and distinct associations with the word “bee” and
will focus on that aspect of the mark, and (2) the
grammatical structure of Applicant’s Mark places the focus
on the word “BEE” and not “BACKYARD.”
Serial No. 88623708
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Applicant’s brief pp. 10-11.10 Applicant goes on to argue that “BACKYARD alone
brings to mind the backyard of a home” and that the cited mark BACKYARD IPA, in
its entirety, “creates an impression of drinking IPA beer in one’s backyard.
BACKYARD BEE, on the other hand, brings to mind first and foremost a bee – a
flying, pollinating, and highly recognizable insect. … BEE changes the meaning of
backyard, so that the image is of a bee in one’s backyard.” Id. at 13.11 Applicant
further argues that bees have a noticeable appearance, serve a specific purpose in the
ecosystem, and pollinate plants and create honey, which it asserts without support,
is a common flavor or ingredient in beer. Id. at 14.12 Thus, Applicant contends, BEE
is the dominant part of its mark and that its BACKYARD BEE mark “creates the
distinct commercial impression that suggests the beer is honey-flavored and that the
honey used in the beer is local, or from the consumer’s ‘backyard.’” Id.13 Applicant
supports its position with internet evidence showing increased attention to bees in
popular culture,14 and bees as the subject of various idioms and colloquialisms.15
While Applicant has shown that the word “bee” may evoke an impression of a
pollen producing insect, that “bees” may occupy a “singular” position in current
culture and be the subject of various idioms and colloquialisms, Applicant has not

10 8 TTABVUE 11-12.
11 Id. at 14.
12 Id. at 15.
13 Id.
14 Applicant’s October 12, 2020 Request for Reconsideration, TSDR 14, 21-53.
15 Applicant’s May 6, 2020 Response, TSDR 41-59; Applicant’s October 12, 2020 Request for
Reconsideration, TSDR 15-20.
Serial No. 88623708
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demonstrated how those particulars relate to “beer” such that the word BEE
dominates Applicant’s mark. While the addition of the word BEE attributes to the
meaning and overall commercial impression of Applicant’s mark, it does not
distinguish Applicant’s mark from Registrant’s. To the extent that consumers
associate the word BEE with honey and also appreciate that honey may be an
ingredient in beer, those same consumers are likely to assume that BACKYARD BEE
is a variant mark of Registrant’s identifying a honey beer.
Applicant relies on several decisions to support its position that the commercial
impressions of Applicant’s and Registrant’s marks differ.16 Applicant’s discussion
primarily focuses on the decision in Roederer. However, unlike in Roederer where the
marks CRISTAL for “wine, including champagne” and CRYSTAL CREEK for “wine”
were found to evoke distinct commercial impressions, as discussed, we do not find the
marks at issue here to create distinctly different commercial impressions. While the
word BEE in Applicant’s BACKYARD BEE mark lends some difference to the
commercial impression imparted by Applicant’s mark, the additional BEE element
does not sufficiently alter it, such that the addition of BEE creates a source distinction

16 These cases include, by way of example: Champagne Louis Roederer, S.A. v. Delicato
Vineyards, 148 F.3d 1373, 47 USPQ2d 1459 (Fed. Cir. 1998); and the non-precedential
decisions In re Hutchinson and Stengl, Application Serial Number 86809909 (August 8, 2019)
(finding CANNONBALL and CANNONBALL CREEK, both for beer, create different
commercial impressions and thus are dissimilar) and In re Reubens Brews LLC, Application
Serial Number 86066711 (October 27, 2015) (finding no likelihood of confusion between
RUEBEN’S BREWS & Design for beer and RUBEN’S for wine). While practitioners may cite
to non-precedential decisions, they are not binding on the Board. Because such cases have
no precedential effect, the Board will generally not discuss them in other decisions and we
see no reason to do so here. See e.g., In re Luxuria s.r.o., 100 USPQ2d 1146, 1151 n.7 (TTAB
2011); Trademark Trial and Appeal Board Manual of Procedure § 101.03 (June 2020).
Serial No. 88623708
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in the minds of the consuming public between Applicant’s BACKYARD BEE mark
and the cited mark BACKYARD IPA. Rather, as noted, it is more likely that
consumers and prospective consumers familiar with beer sold under Registrant’s
BACKYARD IPA mark would believe upon encountering Applicant’s BACKYARD
BEE beer that it is a companion product or variant that originates from the same
source as Registrant’s BACKYARD IPA beer.
With further regard to the numerous cases cited by Applicant, as well as those of
the Examining Attorney, to bolster their respective positions regarding the similarity
of the marks, as is often noted, “the Board must decide each case on its own merits.”
See In re Nett Designs Inc., 236 F.3d 1339, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001);
see also In re Kent-Gamebore Corp., 59 USPQ2d 1373 (TTAB 2001); In re Wilson, 57
USPQ2d 1863 (TTAB 2001). We have carefully considered the record on appeal in
making our findings.
At bottom, we recognize that in comparing the marks, we must consider
Applicant’s and Registrant’s marks in their entireties, not merely the common
portions. Thus, we have taken into account all of the differences in appearance,
sound, and connotation between Applicant’s mark BACKYARD BEE and the cited
BACKYARD IPA mark, and find that the differences are outweighed by the
similarities between them due to the shared term BACKYARD.
Before leaving this discussion we note that there is no third-party use or
registration evidence in the record that would demonstrate any weakness in the
shared term BACKYARD.
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We thus find that the DuPont factor regarding the similarity of the marks favors
a finding of likelihood of confusion.
D. Conclusion
When we consider all of the arguments and evidence relating to the relevant
likelihood of confusion factors, we find that confusion is likely between Applicant’s
mark BACKYARD BEE and the cited registered mark BACKYARD IPA. We find so
principally due to the similarity of the marks, the identical goods, and the presumed
identical trade channels and purchasers.
Decision: The refusal to register Applicant’s mark BACKYARD BEE under
Section 2(d) is affirmed.