Salt Works Brewing Company, LLC

Trademark Trial and Appeal Board

Jun 11, 2021

86970058 (T.T.A.B. Jun. 11, 2021)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed: June 11, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Salt Works Brewing Company, LLC
_____

Serial No. 86970058
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Francis John Ciaramella of Francis John Ciaramella, PLLC,
for Salt Works Brewing Company, LLC.
Sarah E. Steinpfad, Trademark Examining Attorney, Law Office 120,
David Miller, Managing Attorney.
_____

Before Cataldo, Heasley, and Pologeorgis,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Salt Works Brewing Company, LLC (“Applicant”) seeks registration on the
Principal Register of the standard character mark SALT WORKS BREWING
COMPANY (“BREWING COMPANY” disclaimed) for the following goods in
International Class 32:1

1 Application Serial No. 86970058, filed on April 9, 2016, based on an allegation of a bona fide
intent to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b).
Serial No. 86970058
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Beer; Beer, ale and lager; Beer, ale and porter; Beer, ale, lager, stout
and porter; Beer, ale, lager, stout, porter, shandy; Beer-based cocktails;
Beers; Brewed malt-based beers; Coffee-flavored beer; Flavored beers;
Hop extracts for manufacturing beer; Malt beer; Malt liquor; Non-
alcoholic beer; Pale beer; Porter; Processed hops for use in making beer;
Root beer; Wheat beer.
The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground of
likelihood of confusion with the standard character mark SALTWORKS PROPERTY,
registered on the Principal Register for “distilled spirits” in International Class 33.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal resumed. Applicant and the Examining Attorney filed
briefs. For the reasons explained below, we affirm the refusal to register.3
I. Likelihood of Confusion
Our determination under Section 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. 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 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

2 Registration No. 5617827, registered on November 27, 2018.
3 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.
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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.”).
In any likelihood of confusion analysis, however, two key considerations are the
similarities between the marks and the similarities between the goods or services.
See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004);
Federated Foods, Inc. v. Fort 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.”); see also In re i.am.symbolic, LLC, 866 F.3d 1315, 123 USPQ2d 1744, 1747
(Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for
which there is record evidence but ‘may focus … on dispositive factors, such as
similarity of the marks and relatedness of the goods.’”) (quoting Herbko Int’l, Inc. v.
Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)).
A. Similarity of the Marks
We first consider the similarity or dissimilarity of the marks in their entireties
as to appearance, sound, connotation and commercial impression. See Palm Bay
Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 369 F.3d 1369, 73
USPQ2d 1689, 1691 (Fed. Cir. 2005). “Similarity in any one of these elements may be
sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126
Serial No. 86970058
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USPQ2d 1742, 1746 (TTAB 2018) (quoting In re Davia, 110 USPQ2d 1810, 1812
(TTAB 2014), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019)).
“The 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, 123 USPQ2d at 1748 (quoting Coach Servs.,
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir.
2012) (internal quotation marks omitted)). The focus is on the recollection of the
average purchaser, who normally retains a general rather than a specific impression
of trademarks. See Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1470
(TTAB 2016); In re Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016); Sealed
Air Corp. v. Scott Paper Co., 190 USPQ 106, 108 (TTAB 1975).
Our analysis cannot be predicated on dissecting the marks into their various
components; that is, the decision must be based on a comparison of 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.”). However, “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 feature of a mark, provided
Serial No. 86970058
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the ultimate conclusion rests on consideration of the marks in their entireties.” In re
Nat’l Data, 224 USPQ at 751.
Applicant’s mark is SALT WORKS BREWING COMPANY in standard
characters. The cited mark is SALTWORKS PROPERTY, also in standard
characters. Given that both marks begin with the virtually identical wording, i.e.,
SALT WORKS and SALTWORKS, the marks are similar in sound, appearance,
connotation and commercial impression. The fact that the initial wording in the cited
mark appears as a single, compound term while the same wording appears as two
words in Applicant’s mark is of no consequence. See, e.g., Seaguard Corp. v. Seaward
Int’l, Inc., 223 USPQ 48, 51 (TTAB 1984) (“[T]he marks ‘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), aff’d,
737 F.2d 1576, 222 USPQ 665 (Fed. Cir. 1984) (“There is no question that the marks
of the parties [STOCKPOT and STOCK POT] are confusingly similar. The word
marks are phonetically identical and visually almost identical.”).
Furthermore, it is often the first part of a mark which is most likely to be
impressed upon the mind of a purchaser and remembered when making purchasing
decisions. Palm Bay Imps., 73 USPQ2d at 1692; see also Presto Prods., v. Nice-Pak
Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988). As such, consumers will focus more
on the SALT WORKS portion of Applicant’s mark as the source-indicator for
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Applicant’s goods. This especially holds true since the inclusion of the descriptive and
disclaimed wording BREWING COMPANY in Applicant’s mark will not detract from
the overall similarities between Applicant’s mark and the cited mark SALTWORKS
PROPERTY. Disclaimed matter that is descriptive of or generic for a party’s goods or
services is typically less significant or less dominant when comparing marks. In re
Detroit Athletic Co., 903 F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018)
(citing In re Dixie Rests., Inc., 105 F.3d 1405, 1407, 41 USPQ2d 1531, 1533-34 (Fed.
Cir. 1997)); TRADEMARK MANUAL OF EXAMINING PROCEDURE (“TMEP”)
§ 1207.01(b)(viii) (October 2018).
Additionally, consumers who are familiar with Registrant’s SALTWORKS
PROPERTY distilled spirits and who then encounter Applicant’s SALT WORKS
BREWING COMPANY for various beer beverages may think Applicant’s beers are a
product line extension of Registrant’s distilled spirits. See, e.g., Double Coin Holdings
Ltd. v. Tru Dev., 2019 USPQ2d 377409, *7 (TTAB 2019) (“ROAD WARRIOR looks,
sounds, and conveys the impression of being a line extension of WARRIOR”); Joel
Gott Wines LLC v. Rehoboth Von Gott, Inc., 107 USPQ2d 1424, 1433 (TTAB 2013)
(“Purchasers of opposer’s GOTT and JOEL GOTT wines are likely to assume that
applicant’s goods, sold under the mark GOTT LIGHT and design, are merely a line
extension of goods emanating from opposer”); In re Toshiba Med. Sys. Corp., 91
USPQ2d 1266, 1271 (TTAB 2009) (holding that VANTAGE TITAN for MRI diagnostic
apparatus and TITAN for medical ultrasound device were confusingly similar and
that the addition of applicant’s “product mark,” VANTAGE, to the registered mark
Serial No. 86970058
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would not avoid confusion); Schieffelin & Co. v. Molson Cos., 9 USPQ2d 2069, 2073
(TTAB 1989) (“Those consumers who do recognize the differences in the [BRADOR
and BRAS D’OR] marks may believe that applicant’s mark is a variation of opposer’s
mark that opposer has adopted for use on a different product.”).
Challenging the refusal, Applicant argues that (1) the marks differ visually and
aurally, (2) the marks, as actually used in commerce by the respective parties,
connote a particular and distinct commercial impression, and (3) there is no evidence
that the cited mark is famous or acquired secondary meaning within the marketplace
or that consumers associate the term SALTWORKS with Registrant. Additionally,
Applicant contends that because the USPTO has permitted numerous pairs of similar
marks to register for different alcoholic beverages, there can be no likelihood of
confusion between its mark and the cited mark. In support thereof, Applicant relies
on copies of nineteen pairs of registered marks obtained from the USPTO database.4
We do not find Applicant’s arguments persuasive. First, while Applicant’s mark
includes the term BREWING COMPANY and the cited mark includes the term
PROPERTY, the marks are nonetheless similar in sound, appearance, connotation
and commercial impression in that they both begin with the virtually identical
dominant wording. Second, Applicant’s reliance on extrinsic evidence to demonstrate
how the marks are actually used in commerce is misplaced. We must determine the
question of likelihood of confusion based on the cited mark, as registered, and
Applicant’s mark as it appears on the drawing page of the involved application, and

4 Applicant’s October 23, 2020 Request for Reconsideration, Exhibit D; TSDR pp. 31-132.
Serial No. 86970058
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not on their manner of use based on extrinsic evidence. In re Shell Oil, 26 USPQ2d
at 1690 n.4 (“Although Shell argues that its use of RIGHT-A-WAY would be in
association with other Shell trademarks, the proposed registration is not so limited.
Registrability is determined based on the description in the application, and
restrictions on how the mark is used will not be inferred.”). Third, Applicant’s
argument that the absence of fame of the Registrant’s mark should be treated as a
factor in Applicant’s favor is untenable in an ex parte proceeding. The prior mark’s
fame is generally considered only in the context of inter partes proceedings because,
“in ex parte proceedings, the examining attorney is not expected to submit evidence
regarding the fame of the cited mark….” TMEP § 1207.01(d)(ix). Accordingly, in an
ex parte analysis of the DuPont factors for determining likelihood of confusion, the
“fame of the mark” factor is normally treated as neutral when no evidence as to fame
has been provided, as is the case here. See In re Mr. Recipe, LLC, 118 USPQ2d 1084,
1086-88 (TTAB 2016); see also In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1204
(TTAB 2009) (noting that the absence of evidence as to the fame of the registered
mark “is not particularly significant in the context of an ex parte proceeding”).
Notwithstanding, we note that the cited mark issued on the Principal Register
without a showing of acquired distinctiveness under Section 2(f) of the Trademark
Act. Thus, we find Registrant’s SALTWORKS PROPERTY mark, when viewed in its
entirety, is inherently distinctive and, therefore, is entitled to the normal scope of
protection accorded an inherently distinctive mark.
Serial No. 86970058
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Finally, with regard to Applicant’s third-party registration evidence, we initially
note that none of the pairs of registered marks are for “distilled spirits” on the one
hand, and “beer” on the other. Instead, they are for distilled spirits v. wine. Moreover,
several of the pairs of registrations are for marks with differing commercial
impressions, namely, RECIPE 21 v. CEPA 21; RUM DOG RUM v. FROSTY DOG;
FIVE FARMS v. FIVE RIVERS; MONTANA 1889 WHISKEY v. 1859 CIDER
COMPANY; and BLACK RABBIT v. CALIFORNIA RABBIT. Additionally, the marks
in these pairs of third-party registrations are unlike the mark in the cited
registration.
Further, we are unable to determine from the face of the registration certificates
the contexts in which these third-party registrations were permitted. See In re Nett
Designs, Inc., 263 F.3d 1339, 57 USPQ2d 1564 (Fed. Cir. 2001) (“Even if some prior
registrations had some characteristics similar to Nett Design's application, the PTO's
allowance of such registrations does not bind the Board or this court.”). For this
reason, Applicant’s third-party registration evidence is of limited utility. In this
regard, prior decisions and actions of other examining attorneys in registering other
marks have little evidentiary value and are not binding upon the USPTO or the
Board. In re Midwest Gaming & Entm’t, 106 USPQ2d 1163, 1165 n.3 (TTAB 2013)
(citing In re Nett Designs, Inc., 57 USPQ2d at 1566); TMEP § 1207.01(d)(vi). It has
been noted many times that each case is decided on its own facts, and each mark
stands on its own merits. See AMF Inc. v. Am. Leisure Prods., Inc., 474 F.2d 1403,
177 USPQ 268, 269 (CCPA 1973); In re Binion, 93 USPQ2d 1531, 1536 (TTAB 2009).
Serial No. 86970058
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Quite simply, the cited mark and Applicant’s mark consist of virtually the
identical dominant wording, i.e., “SALT WORKS” and “SALTWORKS”. For the
reasons discussed above, consumers are more likely to remember the term SALT
WORKS than the other elements of Applicant’s mark. Nat’l Data, 224 USPQ at 751.
While we have not overlooked or discounted the disclaimed, descriptive wording
BREWING COMPANY in Applicant’s mark or the term PROPERTY in the cited
mark, we nonetheless conclude that Applicant’s SALT WORKS BREWING
COMPANY and the cited mark SALTWORKS PROPERTY, when considered in their
entireties, are substantially similar.
Thus, the first DuPont factor favors a finding of likelihood of confusion.
B. Relatedness of the Goods
The next step in our analysis is a comparison of the goods identified in Applicant's
application vis-à-vis the goods identified in the cited registration, the second DuPont
factor. See Stone Lion Capital Partner, LP v. Lion Capital LLP, 746 F.3d 1317, 110
USPQ2d 1157, 1161 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computer Servs.
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990); see also Hewlett-Packard
Co. v. Packard Press Inc., 281 F.3d 1261, 62 USPQ2d 1001, 1004 (Fed. Cir. 2002). It
is not necessary that the respective goods be identical or even competitive in order to
find that they are related for purposes of our likelihood of confusion analysis. The
respective goods need only be “related in some manner and/or if the circumstances
surrounding their marketing [be] such that they could give rise to the mistaken belief
that goods emanate from the same source.” Coach Servs., 101 USPQ2d at 1722
Serial No. 86970058
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(quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)); see also In
re Martin’s Famous Pastry Shoppe, Inc., 748 F.2d 1565, 223 USPQ 1289, 1290 (Fed.
Cir. 1984); In re Melville Corp., 18 USPQ2d 1386, 1388 (TTAB 1991).
Evidence of relatedness may include news articles and/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 are advertised
together or offered by the same manufacturer or dealer; and/or copies of prior use-
based registrations of the same mark for both Applicant's goods and the goods listed
in the cited registration. In re Davia, 110 USPQ2d at 1817 (finding pepper sauce and
agave related where evidence showed both were used for the same purpose in the
same recipes and thus consumers were likely to purchase the products at the same
time and in the same stores). The issue is not whether purchasers would confuse the
goods at issue, but rather whether there is a likelihood of confusion as to the source
of these goods. L'Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012); In re
Rexel Inc., 223 USPQ 830, 832 (TTAB 1984).
In support of her argument that Applicant’s beer products and Registrant’s
distilled spirits are related, the Examining Attorney submitted Internet evidence
showing twelve third parties offering for sale both beer and distilled spirits under the
same mark.5

5 January 14, 2019 Office Action, TSDR pp. 6-11; November 13, 2020 Denial of Request for
Reconsideration, TSDR pp. 4-18. The Examining Attorney also submitted evidence regarding
a third party selling beer under the mark DELUXE and distilled spirits under the mark
SINISTER. November 13, 2020 Denial of Request for Reconsideration; TSDR pp. 19-32. We
note, however, that this evidence does not demonstrate that this particular third party offers
both beer and distilled spirits under each of its DELUXE and SINISTER marks.
Serial No. 86970058
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Applicant argues, however, that it does not sell distilled spirits under its proposed
mark in International Class 33, but rather sells its beer products in International
Class 32.6 Additionally, Applicant maintains that because there is no per se rule that
holds that all alcoholic beverages are related, confusion is unlikely.7 Applicant relies
on two unpublished Board decisions to support its argument, namely, Patrón Spirits
International AG v. Conyngham Brewing Company, Opposition No. 91226939 (TTAB
June 8, 2018) and Chatam Internatioanl Inc. v. M Chapoutier, Opposition No.
91228479 (TTAB Nov. 28, 2018).
Applicant’s arguments are unavailing. First, the fact that Applicant’s goods and
Registrant’s goods are in different International Classes does not establish that they
are unrelated under Trademark Act Section 2(d). The determination concerning the
proper classification of goods or services is a purely administrative determination
unrelated to the determination of likelihood of confusion. In re Detroit Athletic, 128
USPQ2d at 1051 (citing Jean Patou, Inc. v. Theon, Inc., 9 F.3d 971, 29 USPQ2d 1771,
1774 (Fed. Cir. 1993)). Rather, the way Applicant and Registrant have identified their
goods controls. See Nat’l Football League v. Jasper Alliance Corp., 16 USPQ2d 1212,
1216 & n.5 (TTAB 1990). Moreover, as previously noted, the issue is not whether
purchasers would confuse Applicant’s beer products and Registrant’s distilled spirits,
but rather whether there is a likelihood of confusion as to the source of these goods.

Accordingly, we do not find this evidence probative in our analysis regarding the relatedness
of the goods.
6 Applicant’s Appeal Brief, p. 8; 7 TTABVUE 9.
7 Id.
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As to Applicant’s reliance on prior unpublished Board decisions, we note that such
unpublished decisions are not binding on the Board. See In re Fiat Group Mktg. &
Corp. Commc'ns S.p.A., 109 USPQ2d 1593, 1596 n.6 (TTAB 2014); In re the Procter
& Gamble Co., 105 USPQ2d 1119, 1121 (TTAB 2012); In re Luxuria s.r.o., 100
USPQ2d 1146, 1151 n.7 (TTAB 2011). Notwithstanding, neither of the unpublished
Board decisions held that the alcoholic beverages at issue were per se unrelated.
Instead, the Board found that the evidence of record submitted in each case was
insufficient to demonstrate the relatedness of the alcoholic beverages at issue.
In contrast, the evidence of record submitted by the Examining Attorney in this
proceeding demonstrates that Applicant’s and Registrant’s goods are related and are
the types of goods that have been offered under a single mark by a single entity such
that, when identified by similar marks, as is the case here, confusion as to source is
likely. Cf. In re Shell Oil., 26 USPQ2d at 1689 (“[E]ven when 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.”).
This finding is consistent with precedent. Although we agree with Applicant that
there is no per se rule that all alcoholic beverages are related, see In re White Rock
Distilleries Inc., 92 USPQ2d 1282, 1285 (TTAB 2009), the Federal Circuit and the
Board have previously found, on different records, that beer and distilled spirits are
related goods for purposes of a Trademark Act Section 2(d) analysis. See e.g., In re
Chatam International Inc., 380 F.3d 1340, 71 USPQ2d 1944 (Fed. Cir. 2004) (beer
Serial No. 86970058
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and tequila); Schieffelin & Co. v. Molson Cos., 9 USPQ2d 2069, 2073 (TTAB 1989)
(Cognac brandy related to malt liquor, beer and ale).
Thus, the second DuPont factor also favors a finding of likelihood of confusion.
C. Similarity of Trade Channels/Classes of Purchasers
Next we consider established, likely-to-continue channels of trade, the third
DuPont factor. Because there are no limitations or restrictions as to trade channels
or classes of purchasers in the respective identifications of goods, we presume that
the goods are or would be marketed in all normal trade channels for such goods and
to all normal classes of purchasers of such goods. See Packard Press Inc. v. Hewlett-
Packard Co., 56 USPQ2d at 1357. The trade channels for both Applicant’s and
Registrant’s goods would include liquor stores, bars and restaurants, and the
alcoholic beverage sections of retail outlets. The relevant class of consumers for both
goods includes connoisseurs as well as ordinary adult consumers who consume
alcoholic beverages, or purchase different types of alcoholic beverages as gifts or to
stock a bar at home. See Somerset Distilling, Inc. v. Speymalt Whiskey Distribs. Ltd.,
14 USPQ2d 1539, 1542 (TTAB 1989) (“While we realize that certain purchasers of
alcoholic beverages may be aficionados and know not only ‘their brands' but which
companies make which trademarked products, we also realize that other consumers
may not be as knowledgeable, and may purchase Scotch whisky, gin or vodka as gifts,
or to stock a bar for their guests.”). Accordingly, the trade channels and classes of
consumers for the goods at issue, at a minimum, overlap.
Thus, the third DuPont factor also favors a finding of likelihood of confusion.
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D. Consumer Sophistication
The fourth DuPont factor concerns the “conditions under which and buyers to
whom sales are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont,
177 USPQ at 567. Applicant argues that the purchasers of the parties’ goods are
sophisticated and discriminating.8 Specifically, Applicant contends that because the
goods at issue are relatively expensive, more care is taken and the relevant
consumers are less likely to be confused as to source or affiliation.9
Applicant has not pointed us to any evidence supporting its argument that
purchasers of distilled spirits or beer products are sophisticated and make purchasing
decisions through careful consideration, or that the goods at issue are expensive. In
fact, its argument is not plausible given the identifications of goods involved in this
appeal. Because there are no restrictions as to purchasers or price point for the goods,
we find that (1) the goods at issue include low-priced beer and distilled spirits, and
(2) purchasers of distilled spirits or beer are adult members of the general public, who
necessarily encompass both connoisseurs as well as ordinary adult consumers who
consume alcoholic beverages and who may have limited or no discerning knowledge
regarding the attributes of the alcoholic beverages they imbibe. Our decision must be
based on the “least sophisticated purchasers,” Stone Lion, 110 USPQ2d at 1163.

8 Applicant’s Appeal Brief, pp. 8-9; 7 TTABVUE 9-10.
9 Id.
Serial No. 86970058
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Notwithstanding, the evidence of record demonstrates that beer can be relatively
inexpensive. For example, screenshots from the website www.maplewoodbrew.com
shows that this entity sells four-packs of beer for $10.10
For products that are relatively low-priced and subject to impulse buying, the risk
of likelihood of confusion increases because purchasers of these products are held to
a lesser standard of purchasing care. In re Bay State Brewing Co., 117 USPQ2d 1958,
1960 (TTAB 2016) (quoting Recot, Inc. v. Becton, 214 F.3d 1322, 1329, 54 USPQ2d
1894, 1899 (Fed. Cir. 2000)). Casual purchasers of low-cost, every-day consumer items
are generally more likely to be confused as to the source of the goods. In re Davia, 110
USPQ2d at 1818 (citing Specialty Brands, Inc. v. Coffee Bean Distribs., Inc., 748 F.2d
669, 223 USPQ 1281, 1282 (Fed. Cir. 1984)). Thus, contrary to Applicant’s indications,
the cost of the goods or any sophistication of the purchasers does not obviate any
likelihood of confusion in this case, but seemingly increases the likelihood of
confusion.
Even if some of the consumers of Applicant’s or Registrant’s goods are
sophisticated, we point out that they may not be sophisticated or knowledgeable in
the field of trademarks or immune from source confusion. See In re Shell Oil Co., 26
USPQ2d at 1690 (indicating that “even sophisticated purchasers can be confused by
very similar marks”); Top Tobacco, LP v. N. Atl. Operating Co., 101 USPQ2d 1163,
1170 (TTAB 2011); TMEP § 1207.01(d)(vii). And in the present circumstance, where
the marks at issue are similar and the goods are related, confusion is often found

10 April 24, 2020 Final Office Action; TSDR pp. 83-84.
Serial No. 86970058
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likely despite customer sophistication and care. “That the relevant class of buyers
may exercise care does not necessarily impose on that class the responsibility of
distinguishing between similar trademarks for similar goods. ‘Human memories even
of discriminating purchasers . . . are not infallible.”’ In re Research & Trading Corp.,
793 F.2d 1276, 230 USPQ 49, 50 (Fed. Cir. 1986) (quoting Carlisle Chem. Works, Inc.
v. Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970));
Wincharger Corp. v. Rinco, Inc., 297 F.2d 261, 132 USPQ 289, 292 (CCPA 1962)
(“Being skilled in their own art does not necessarily preclude their mistaking one
trademark for another when the marks are as similar as those here in issue, and
cover merchandise in the same general field.”); In re Wilson, 57 USPQ2d 1863, 1865-
66 (TTAB 2001) (where marks are very similar and goods related, confusion may be
likely even among sophisticated purchasers).
Thus, this DuPont factor is neutral.
E. Nature and Extent of Any Actual Confusion/Length of Time During
and Conditions Under Which There Has Been Concurrent Use
Without Evidence of Actual Confusion.
The seventh DuPont factor considers the “nature and extent of any actual
confusion.” DuPont, 177 USPQ at 567. The eighth DuPont factor contemplates the
“length of time during and conditions under which there has been concurrent use
without evidence of actual confusion.” Id.
The absence of any reported instances of confusion is meaningful only if the record
indicates appreciable and continuous use by Applicant of its mark for a significant
period of time in the same markets as those served by the Registrant under its
respective mark. Gillette Can. Inc. v. Ranir Corp., 23 USPQ2d 1768, 1774 (TTAB
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1992). In other words, for the absence of actual confusion to be probative, there must
have been a reasonable opportunity for confusion to have occurred. Barbara’s Bakery
Inc. v. Landesman, 82 USPQ2d 1283, 1287 (TTAB 2007) (the probative value of the
absence of actual confusion depends upon there being a significant opportunity for
actual confusion to have occurred); Red Carpet Corp. v. Johnstown Am. Enterps. Inc.,
7 USPQ2d 1404, 1406-1407 (TTAB 1988); Central Soya Co., Inc. v. North Am. Plant
Breeders, 212 USPQ 37, 48 (TTAB 1981) (“the absence of actual confusion over a
reasonable period of time might well suggest that the likelihood of confusion is only
a remote possibility with little probability of occurring”).
Applicant points to the absence of evidence of actual confusion as weighing in its
favor.11 We do not accord significant weight to Applicant’s contention, particularly
given that there is no evidence of record as to the length of time Applicant has been
using its mark, nor is there any evidence as to the amount and extent of Applicant’s
sales of Applicant’s identified goods under its involved mark. Further, there is no
evidence of record as to the scope and extent of Registrant’s use of its respective
mark.12

11 Applicant’s Appeal Brief, p. 11; 7 TTABVUE 12.
12 Indeed, the lack of actual confusion in this case is particularly inapplicable because the
application at issue is based on an intent to use and, as noted, Applicant has not shown that
it has used its mark in the United States so there has been no opportunity for actual confusion
to have occurred. Further, with regard to the cited mark, the allegation in a registration of a
date of use is not evidence on behalf of the applicant or registrant; a date of use of a mark
must be established by competent evidence. See Trademark Rule 2.122(b)(2); 37 C.F.R.
§ 2.122(b)(2).
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Accordingly, while examples of actual confusion may point toward a finding of a
likelihood of confusion, an absence of such evidence is not as compelling in support of
a finding of no likelihood of confusion. In re Opus One, Inc., 60 USPQ2d 1812, 1817
(TTAB 2001) (“The fact that an applicant in an ex parte case is unaware of any
instances of actual confusion is generally entitled to little probative weight in the
likelihood of confusion analysis, inasmuch as the Board in such cases generally has
no way to know whether the registrant likewise is unaware of any instances of actual
confusion, nor is it usually possible to determine that there has been any significant
opportunity for actual confusion to have occurred.”). Thus, we cannot conclude from
the lack of instances of actual confusion that confusion is not likely to occur.
Therefore, the seventh and eighth DuPont factors are neutral.
F. Extent of Potential Confusion
Applicant also argues that the twelfth DuPont factor, the extent of potential
confusion, i.e., whether de minimis or substantial, is also a relevant consideration.
According to Applicant, any potential confusion would be de minimis, especially given
that there have been no documented cases of actual confusion presented.13
We disagree. Because we have found that (1) the marks at issue are similar; (2)
the parties’ respective goods are related; and (3) the parties’ respective goods are
provided in the same or overlapping trade channels to the same or overlapping
consumers, the potential for confusion is not de minimis.
Accordingly, this DuPont factor is also neutral.

13 Applicant’s Appeal Brief, pp. 10-11; 7 TTABVUE 11-12.
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II. Conclusion
We have considered all of the arguments and evidence of record, and all relevant
DuPont factors. Because we have found that: (1) the marks are similar in appearance,
connotation and commercial impression; and (2) Applicant’s goods are related to
Registrant’s and move in the same or overlapping channels of trade to the same or
overlapping classes of purchasers, we conclude that Applicant’s mark, as used in
connection with the goods identified in the application, so resembles the cited mark
for the identified goods as to be likely to cause confusion or mistake, or to deceive
under Section 2(d) of the Trademark Act.
Decision: The refusal to register Applicant’s SALT WORKS BREWING
COMPANY mark under Section 2(d) of the Trademark Act is affirmed.