Sash & Fritz GmbH

Trademark Trial and Appeal Board

Jan 7, 2021

79255408 (T.T.A.B. Jan. 7, 2021)

Mailed: January 7, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Sash & Fritz GmbH
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Application Serial No. 79255408
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Alexander S. Lazouski of Lazouski IP LLC for Sash & Fritz GmbH.

Leslie L. Richards, Trademark Examining Attorney, Law Office 106,
Mary I. Sparrow, Managing Attorney.
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Before Bergsman, Shaw and Lynch, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Sash & Fritz GmbH (Applicant) seeks registration on the Principal Register of the
mark WILD CHILD and design, reproduced below, for “alcoholic beverages except
beer, namely, gin,” in International Class 33 (hereinafter “gin”).1

1 Serial No. 79255408 was filed January 30, 2019 as a request for extension of protection of
International Registration No. 1458390 under Section 66(a) of the Trademark Act, 15 U.S.C.
§ 1141f(a). Applicant claims a priority date of September 18, 2018.

This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
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The description of the mark reads as follows:
The mark consists of the wording “WILD CHILD
CRAFTED FROM WILD BOTANICALS” with a dot placed
before the wording “WILD” and after the wording “CHILD”
arranged in the outer portion of a background circle. The
inner portion of the circle contains a depiction of a young
boy with a Mohawk haircut. The wording “WILD CHILD”
appears beneath the circle.
Color is not claimed as a feature of the mark.
The name(s), portrait(s), and/or signature(s) shown in the
mark does not identify a particular living individual.
Applicant disclaims the exclusive right to use the wording “Crafted From Wild
Botanicals.”
The Examining Attorney refused to register Applicant’s mark under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark so
resembles the registered mark WILD CHILD, in standard character form, for “wine,”
in International Class 33, as to be likely to cause confusion.2

2 Registration No. 4133164 registered April 24, 2012; Combined Sections 8 and 15
declarations accepted and acknowledged.
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We base our determination under Section 2(d) on an analysis of all of the probative
facts in evidence that are relevant to the factors bearing on the likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973)
(“DuPont”), 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 discharging this duty, the thirteen
DuPont factors ‘must be considered’ ‘when [they] are of record.’” In re Guild Mortg.
Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162 (Fed. Cir. 2019) (quoting In re Dixie
Rests. Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533 (Fed. Cir. 1997) and DuPont,
177 USPQ at 567). “Not all DuPont factors are relevant in each case, and the weight
afforded to each factor depends on the circumstances. Any single factor may control
a particular case.” Stratus Networks, Inc. v. UBTA-UBET Commc’ns Inc., 955 F.3d
994, 2020 USPQ2d 10341, *3 (Fed. Cir. 2020) (citing Dixie Rests., 41 USPQ2d at 1406-
07).
“Each case must be decided on its own facts and the differences are often subtle
ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA
1973). In any likelihood of confusion analysis, 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
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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)).
I. The similarity or dissimilarity of the marks.
We turn first to the DuPont factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression. DuPont, 177 USPQ 567. “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
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. Sept. 13, 2019); accord Krim-
Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968)
(“It is sufficient if the similarity in either form, spelling or sound alone is likely to
cause confusion.”) (citation omitted).
In comparing the marks, we are mindful that “[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.” Cai v. Diamond Hong,
Inc., 901 F.3d 1367, 127 USPQ2d 1797, 1801 (Fed. Cir. 2018) (quoting Coach Servs.
Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed. Cir.
2012)).
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The proper focus is on the recollection of the average customer, who retains a
general rather than specific impression of the marks. Geigy Chem. Corp. v. Atlas
Chem. Indus., Inc., 438 F.2d 1005, 169 USPQ 39, 40 (CCPA 1971); Inter IKEA Sys.
B.V. v. Akea, LLC, 110 USPQ2d 1734, 1740 (TTAB 2014); L’Oreal S.A. v. Marcon, 102
USPQ2d 1434, 1438 (TTAB 2012). Because the goods at issue are gin and wine, the
average customer is an ordinary consumer albeit a thirsty one.
The marks are similar because they share the term “Wild Child,” which comprises
the entirety of Registrant’s mark. With respect to Applicant’s mark, the term “Wild
Child” is the dominant part of the mark because Applicant presents it in big bold
letters that draw the viewer’s attention. In the case of marks consisting of words and
a design, we normally accord the words greater weight because the words are likely
to make more of an impression upon purchasers and purchasers will remember the
words and use them to request the products. See Jack Wolfskin Ausrustung Fur
Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 116
USPQ2d 1129, 1134 (Fed. Cir. 2015); In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
1905, 1908, 1911 (Fed. Cir. 2012) (citing CBS Inc. v. Morrow, 708 F.2d 1579, 218
USPQ 198, 200 (Fed. Cir 1983)); Herbko Int’l, 64 USPQ2d at 1380 (“Because the
impact of the design in the overall commercial impression is minor when compared
with the words, a consumer viewing Herbko’s mark would attach greater significance
to the words CROSSWORD COMPANION than to the crossword puzzle design.”).
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
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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 Ox Paperboard, LLC, 2020
USPQ2d 10878, *4 (TTAB 2020) (citing Stone Lion Capital Partners, LP v. Lion
Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1161 (Fed. Cir. 2014)).
On the other hand, 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 the ultimate conclusion rests on a consideration
of the marks in their entireties. Indeed, this type of
analysis appears to be unavoidable.
In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985).
The design portion of Applicant’s mark reinforces the importance of the term “Wild
Child,” rather than distinguishing it from Registrant’s mark, because the portrait of
a young boy with a Mohawk haircut engenders the commercial impression of a wild
child. The design also is encircled with wording, and “Wild Child” is repeated at the
top center.
In addition, Applicant has disclaimed the exclusive right to use the remaining
wording in the circle surrounding the design, the descriptive term “Crafted From
Wild Botanicals.” It is well settled that disclaimed, descriptive matter may have less
significance in likelihood of confusion determinations. See In re Detroit Ath. Co., 903
F.3d 1297, 1305, 128 USPQ2d 1047, 1050 (Fed. Cir. 2018) (citing Dixie Rests.,
41 USPQ2d at 1533-34); Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d
1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court has noted that
the ‘descriptive component of a mark may be given little weight in reaching a
conclusion on the likelihood of confusion.’”) (quoting Nat’l Data Corp., 224 USPQ at
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752); In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed
matter is often “less significant in creating the mark’s commercial impression”).
“[I]f the dominant portion of both marks is the same, then confusion may be likely
notwithstanding peripheral differences.” In re Denisi, 225 USPQ 624, 624 (TTAB
1985). The peripheral differences in this case fail to distinguish the marks.
Because Registrant’s mark is in standard character form, the rights associated
with that mark reside in the wording – WILD CHILD – and not in any particular
display. Thus, Registrant may depict WILD CHILD in any manner, regardless of the
font style, size, or color, including in a manner similar to Applicant’s mark. See
Viterra, 101 USPQ2d at 1909-11; Citigroup Inc. v. Capital City Bank Grp., Inc.,
637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir. 2011); Squirtco v. Tomy Corp.,
697 F.2d 1038, 216 USPQ 937, 939 (Fed. Cir. 1983) (rejecting argument that for
purposes of determining whether two marks are similar, a mark in a typed drawing
(equivalent to modern standard character format) is distinct from such mark in a logo
format; “[b]y presenting its mark in a typed drawing, a difference cannot legally be
asserted by that party”). In other words, Registrant could display WILD CHILD in
the manner reproduced below:

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While there is no explicit rule that marks must automatically be similar where
Applicant’s mark contains the whole of Registrant’s mark, under the circumstances
in this appeal, the fact that Applicant’s mark incorporates the entirety of Registrant’s
mark increases their similarity. See, e.g., China Healthways Inst. Inc. v. Xiaoming
Wang, 491 F.3d 1337, 83 USPQ2d 1123, 1125 (Fed. Cir. 2007) (applicant’s mark CHI
PLUS is similar to opposer’s mark CHI both for electric massagers); In re Toshiba
Med. Sys. Corp., 91 USPQ2d 1266, 1271 (TTAB 2009) (applicant’s mark VANTAGE
TITAN for medical magnetic resonance imaging diagnostic apparatus confusingly
similar to TITAN for medical ultrasound diagnostic apparatus); Broad. Network Inc.
v. ABS-CBN Int’l, 84 USPQ2d 1560, 1568 (TTAB 2007) (respondent’s mark ABS-CBN
is similar to petitioner’s mark CBN both for television broadcasting services); In re
El Torito Rests., Inc., 9 USPQ2d 2002, 2004 (TTAB 1988) (applicant’s mark MACHO
COMBOS for food items confusingly similar to MACHO for restaurant entrees).
Applicant contends that the marks “are readily distinguishable in terms of sight,
sound and commercial impression” because Applicant’s mark contains a distinctive
design, citing Ferro Corp. v. Ronco Labs., Inc., 356 F.2d 122, 148 USPQ 497 (CCPA
1966); In re White Rock Distilleries, Inc., 92 USPQ2d 1282 (TTAB 2009); Parfums de
Couer Ltd. v. Lazarus, 83 USPQ2d 1012 (TTAB 2007); and Steve’s Ice Cream v. Steve’s
Famous Hot Dogs, 3 USPQ2d 1477 (TTAB 1987).3 The facts in those cases are
inapposite to the facts in this appeal. In this case, unlike the marks at issue in
Applicant’s cited cases, the common term “Wild Child” is the dominant part of

3 Applicant’s Brief, pp. 6-8 (7 TTABVUE 7-9).
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Applicant’s mark that will catch the consumers’ eyes and consumers will likely
remember. In the marks at issue in Applicant’s cited cases, the design elements
played a more prominent role in creating a commercial impression. Also, as discussed
above, because Applicant’s design element merely depicts and reinforces the
dominant “Wild Child” wording, the design does not create a different connotation or
commercial impression than in the cited WILD CHILD mark.
In addition, Applicant asserts that the design element is the dominant feature of
Applicant’s mark because Applicant displays the design above the term “Wild Child”
and, thus, the design appears first.4 Despite the placement of the design over the term
“Wild Child,” we disagree with Applicant’s assessment that the design is the
dominant feature of Applicant’s mark. There is no mechanical test to select the
dominant element of a mark, Tao Licensing, LLC v. Bender Consulting Ltd.,
125 USPQ2d 1043, 1059 (TTAB 2017), especially here where the design element in
Applicant’s reinforces the importance of the term “Wild Child.”
We find that Applicant’s mark is similar to the registered mark WILD CHILD in
their entireties as to appearance, sound, connotation and commercial impression.
II. The similarity or dissimilarity and nature of the goods.
Applicant is seeking to register its mark for gin and the description of goods in the
cited registration is wine. To show that gin and wine are related products, the

4 Id. at 8 (7 TTABVUE 9).
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Examining Attorney submitted excerpts from numerous third-party websites but
only three websites showed the same mark used to identify both wine and gin.5
● Gervasi Vineyard (gervasivineyard.com) advertising the sale of GERVASI
SPIRITS, including gin, and GERVASI VINEYARD wines;6
● Stoutridge Vineyard (stoutridge.com) advertising the sale of STOUTRIDGE
VINEYARD wines and STOUTRIDGE Dry Gin;7 and
● Warwick Valley Winery & Distillery (wvwinery.com) advertising the sale of
WARWICK VALLEY wines and WARWICK gin.8
The remaining third-party websites do not display the same mark used to identify
wines and gin, although they show that the same entities produce wine and gin, albeit
under different marks.
● Cedar Ridge (crwine.com) advertises the sale of CEDAR RIDGE VINEYARDS
wine and CLEARHEART gin;9
● Dida’s Distillery (didasdistillery.com) advertises, “The highest quality grapes
are pressed and fermented into intense wines, then small-batched distilled in our

5 Citations to the examination record are to the USPTO Trademark Status and Document
Retrieval system (TSDR) in the downloadable .pdf format.
6 June 17, 2020 Request for Reconsideration Denial (TSDR 18-19).
7 Id. at TSDR 29-30.
8 Id. at TSDR 35-36.
9 Id. at TSDR 5-6. The CEDAR RIDGE house mark does not appear on the gin bottle.
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custom 100 gallon pot/column hybrid copper still.”10 The distillery advertises the sale
of DIDA’S vodka, gin and brandy, but no DIDA’S wine;11
● Sweetgrass Winery & Distillery (sweetgrasswinery.com) advertises that sale of
BLACK RIVER GIN.12 The website has a link to wines and advertises that the
company is “crafting wines and spirits from real Maine ingredients,” but there is no
evidence displaying how the company labels its wines;13
● Flag Hill Distillery & Winery (flaghill.com) advertises the sale of FLAG HILL
wines, liqueur, rum and brandy, as well as KARNER BLUE gin;14
● Huber’s Orchard, Winery & Vineyard (huberwinery.com) advertises that it is a
winery and a distillery that produces primarily brandies although it also sells an
“award-winning 1784 Gin”;15
● Ransom Wine Co. & Distillery (ransomspirits.com) advertises RANSOM wines,
vermouth, whiskey and grappa.16 The company advertises, “In 2007 [sic] we took up
the craft of grain-based spirits, adding gin, whiskey and vodka to the lineup,” but did
not display any gin bottles or indicate how the company labels its gin;17

10 Id. at TSDR 7.
11 Id. at TSDR 8-10.
12 Id. at TSDR 11.
13 Id. at TSDR 11-12.
14 Id. at TSDR 14-16. The FLAG HILL house mark does not appear on the gin bottle.
15 Id. at TSDR 20-23. The webpages do not display any wine or gin bottles.
16 Id. at TSDR 25.
17 Id. at TSDR 26.
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● Springfield Manor Winery Distillery Brewery (springfieldmanor.com) advertises
the sale of wines, craft beer, and spirits, including gin, but does not indicate how it
labels its spirits;18 and
● Villicana Winery & Vineyard (villacanawinery.com) advertises the sale of
VILLACANA wines and RE:FIND spirits, including gin.19
Applicant contends that consumers do not perceive gin and wine as related
products because they are different types of products.
[G]in is a grai[n]-based distilled alcoholic drink that
derives its predominant flavour from juniper berries. Wine
is an alcoholic drink typically made from fermented grapes.
It is obvious that nature, method of production and flavor
of gin and wine are vastly different.20
The issue is not whether purchasers would confuse Applicant’s gin and Registrant’s
wine, but rather whether there is a likelihood of confusion as to the source of these
products. See Recot Inc. v. M.C. Becton, 214 F.3d 1322, 1329, 54 USPQ2d 1894, 1898
(Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and thus not
related to, one another in kind, the same goods can be related in the mind of the
consuming public as to the origin of the goods.”); In re I-Coat Co., LLC, 126 USPQ2d
1730, 1737 (TTAB 2018) (“[T]he test is not whether consumers would be likely to
confuse these goods, but rather whether they would be likely to be confused as to their
source.”); In re Cook Med. Tech. LLC, 105 USPQ2d 1377, 1380 (TTAB 2012); Helene

18 Id. at TSDR 27-28.
19 Id. at TSDR 31-34. We cannot determine whether RE:FINED spirits display a VILLICANA
house mark.
20 Applicant’s Brief, p. 11 (7 TTABVUE 12).
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Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d 1618, 1624 (TTAB 1989); In re
Rexel Inc., 223 USPQ 830 (TTAB 1984). Applicant’s argument does nothing to rebut
the evidence that at least three third parties use the same or similar marks to identify
gin and wine and that at least eight third parties produce and sell both gin and wine
albeit under different marks.
Finally, Applicant, in its Reply Brief, asserts, without any evidence that there are
more than 8,700 wineries in the United States and that the websites submitted by
the Examining Attorney demonstrates that only 0.1% of wineries offer both gin and
wine.21 First, “mere attorney arguments unsubstantiated by record evidence are
suspect at best.” Martahus v. Video Duplication Servs. Inc., 3 F.3d 417, 27 USPQ2d
1846, 1849 (Fed. Cir. 1993). See also Cai, 127 USPQ2d at 1799 (quoting Enzo
Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276, 1284 (Fed. Cir. 2005)) (“Attorney
argument is no substitute for evidence.”). Regardless, Applicant’s supposed statistical
argument lacks support from a study or published figure of the total number of joint
producers of wine and gin, and a mere number of joint producers would fail to take
account of the level of renown and degree of distribution, so as to obtain a sense of
the level of consumer exposure. So, we do not find Applicant’s statistical arguments
reliable or persuasive. Second, while the Examining Attorney could have submitted
more evidence showing one entity using the same mark to identify gin and wine, the
evidentiary submissions are sufficient to show that consumers may encounter the
same entity using one mark to identify wine and gin, as well as one entity producing

21 Applicant’s Reply Brief, p. 3 (10 TTABVUE 4).
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both wine and gin albeit under different marks. We discourage the introduction of
evidence that is unnecessarily cumulative.22
We find for purposes of our likelihood of confusion analysis, consumers may
perceive wine and gin as related products.
III. Established, likely-to-continue channels of trade and classes of
consumers.
The third-party websites discussed in the previous section demonstrate that
winery/distilleries advertise the sale of wine and spirits, including gin. In addition, it
is common knowledge that many alcohol retailers sell both wine and spirits, including
gin, to the same classes of consumers.
Applicant contends, “Applicant’s gin would most likely be sold by distilleries
specializing exclusively in spirits … or in a dedicated section of food or liquor stores
next to other spirits or hard liquors away from Registrant’s wines located at a ‘wine’
section usually sorted by the type of wine and its origin.”23 To support that contention,
Applicant submitted extracts from third-party websites advertising the sale of spirits,
including gin, but not wine.24 Applicant’s third-party websites prove that some third
parties sell spirits, including gin, but not wine. The evidence does not rebut the

22 We note that the Examining Attorney missed an opportunity to supplement the evidentiary
record by submitting copies of third-party marks registered for both wine and gin based on
use in commerce. Third-party registrations based on use in commerce that individually cover
a number of different products might have probative value to the extent that they serve to
suggest that the listed products are of a type that may emanate from the same source. In re
Country Oven, Inc., 2019 USPQ2d 443903, *8 (TTAB 2019); In re Albert Trostel & Sons Co.,
29 USPQ2d 1783, 1785-86 (TTAB 1993); In re Mucky Duck Mustard Co. Inc., 6 USPQ2d 1467,
1470 n.6 (TTAB 1988), aff’d mem. 864 F.2d 149 (Fed. Cir. 1988).
23 Applicant’s Brief, p. 12 (7 TTABVUE 13).
24 May 21, 2020 Request for Reconsideration (TSDR 17-53).
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Examining Attorney’s evidence that some third-party winery/distillers advertise the
sale of wine and spirits, including gin. Cf. In re G.B.I. Tile and Stone, Inc., 92 USPQ2d
1366, 1370 (TTAB 2009) (evidence showing only that the source of one product may
not be the source of another product does not prove that the source of one product
may never be the source of another product).
We find that wine and gin are offered through some of the same channels of trade
to some of the same classes of consumers.
IV. Conclusion
Because the marks are similar, the goods are related and offered in some of the
same channels of trade to some of the same classes of consumers, we find that
Applicant’s mark WILD CHILD and design for gin is likely to cause confusion with
the registered mark WILD CHILD, in standard character form, for wine.
Decision: The Section 2(d) refusal to register Applicant’s mark WILD CHILD and
design is affirmed.