Tucker Brewing Company LLC

Trademark Trial and Appeal Board

Jul 21, 2021

88581362 (T.T.A.B. Jul. 21, 2021)

Mailed: July 21, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Tucker Brewing Company LLC
_____

Application Serial No. 88581362
_____

Scott P. Amy and Kenneth A. Knox of Thomas Horstemeyer
for Tucker Brewing Company LLC.

Toby Bulloff, Trademark Examining Attorney, Law Office 119,
Brett Golden, Managing Attorney.
_____

Before Bergsman, Goodman and English, Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Tucker Brewing Company LLC (Applicant) seeks registration on the Principal
Register of the mark ROARING TWENTIES RADLER, in standard character form,
for “beer, namely, radlers,” in International Class 32.1 Applicant disclaims the
exclusive right to use the word “radler.”2

1 Serial No. 88581362 filed August 16, 2019, under Section 1(a) of the Trademark Act,
15 U.S.C. § 1051(a), based on Applicant’s claim of first use of its mark anywhere and in
commerce as of April 1, 2019.
2 A radler is a low-alcohol beer “traditionally an equal mixture of lager and carbonated citrus
soda, and typically clocks] in somewhere near 3.0% ABV. The word radler is German for
This Opinion Is Not a
Precedent of the TTAB
Precedent of the TTAB
PrePrecedent of the TTAB
Serial No. 88581362

- 2 -

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 two registered marks listed below, owned by the same entity, as to be
likely to cause confusion:
● Registration No. 4381958 for the mark ROARING 20’S BOOTLEG, in standard
character form, for “distilled spirits,” in International Class 33;3 and
● Registration No. 2713986 for the mark ROARING 20’S, in typed drawing form,
for “distilled liquor,” in International Class 33.4
I. Preliminary Issue
Applicant, in its main brief, attached evidence that it did not previously make of
record during the prosecution of its application. Trademark Rule 2.142(d), 37 C.F.R.
§ 2.1421(d), provides “[t]he record in the application should be complete prior to the
filing of an appeal. Evidence should not be filed with the Board after the filing of a
notice of appeal.” However, because the Examining Attorney, in her brief, did not

‘cyclist.’” Food Wine website (foodandwine.com) attached to the January 4, 2021 Denial of
Request for Reconsideration (TSDR 5).
Citations to the examination record are to the USPTO Trademark Status and Document
Retrieval system (TSDR) by page number in the downloadable .pdf format.
3 Registered August 2013; Section 8 affidavit accepted.
4 Registered May 6, 2003; renewed.
Prior to November 2, 2003, “standard character” drawings were known as “typed” drawings.
Effective November 2, 2003, Trademark Rule 2.52, 37 C.F.R § 2.52, was amended to replace
the term “typed” drawing with “standard character” drawing. A typed mark is the legal
equivalent of a standard character mark. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d
1905, 1909 n.2 (Fed. Cir. 2012) (“until 2003, ‘standard character’ marks formerly were known
as ‘typed’ marks.”).
Serial No. 88581362

- 3 -

object to the late-filed evidence, we will consider it for whatever probative value it
may have.
II. Likelihood of Confusion
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). We have considered each DuPont factor that
is relevant or for which there is evidence of record. See In re Guild Mortg. Co.,
912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019); M2 Software, Inc. v. M2
Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006); ProMark
Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015) (“While we
have considered each factor for which we have evidence, we focus our analysis on
those factors we find to be relevant.”). “[E]ach 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).
“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). 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,
Serial No. 88581362

- 4 -

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)).
We focus our likelihood of confusion analysis on Registration No. 2713986 for the
mark ROARING 20’S, in typed drawing form, because Registration No. 4381958 for
the mark ROARING 20’S BOOTLEG, in standard character form, contains the word
“Bootleg,” an additional point of difference with Applicant’s mark. If we find there is
a likelihood of confusion between Applicant’s mark ROARING TWENTIES RADLER
and Registrant’s mark ROARING 20’S, there is no need for us to consider the
likelihood of confusion with Registrant’s mark ROARING 20’S BOOTLEG, because
the ROARING 20’S mark would be a sufficient basis for us to affirm the refusal.
Conversely, if we do not find likelihood of confusion between Applicant’s mark and
Registrant’s mark ROARING 20’S, then we would not find there is a likelihood of
confusion with Applicant’s mark and Registrant’s mark ROARING 20’S BOOTLEG.
See, e.g., In re Max Capital Grp. Ltd., 93 USPQ2d 1243, 1245 (TTAB 2010).
Serial No. 88581362

- 5 -

A. The strength of Registrant’s mark ROARING 20’S
Applicant contends that Registrant’s mark ROARING 20’S is a weak mark
entitled to only a narrow scope of protection because,
the “roaring twenties” is an era of U.S. history associated
with prohibition and bootlegging. See Exhibit C. A
reasonable and ordinary consumer would readily associate
“roaring twenties” with “distilled liquor” due to the
prevalence of bootlegging of distilled liquor in the 1920’s,
such as moonshine, whiskey smuggled from Canada, and
“bathtub gin.” See Exhibit D (“The term bathtub gin often
conjures up glamorous images of flapper girls, speakeasies,
and the Roaring Twenties.”). As such, the use of “roaring
twenties” in association with “distilled liquor” should be
afforded narrow or “weak” protection.5
In determining the strength of a mark, we consider both its inherent strength,
based on the nature of the mark itself, and its commercial strength, based on
marketplace recognition of the mark. See In re Chippendales USA, Inc., 622 F.3d
1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both
by its conceptual strength (distinctiveness) and its marketplace strength (secondary
meaning).”); Top Tobacco, L.P. v. N. Atl. Operating Co., Inc., 101 USPQ2d 1163, 1171-
72 (TTAB 2011) (the strength of a mark is determined by assessing its inherent
strength and its commercial strength); Tea Bd. of India v. Republic of Tea Inc.,
80 USPQ2d 1881, 1899 (TTAB 2006).
Registrant’s typed drawing mark ROARING 20’S is registered on the Principal
Register without a showing of acquired distinctiveness and, therefore, is presumed to

5 Applicant’s Brief, p. 11 (9 TTABVUE 13).
Serial No. 88581362

- 6 -

be inherently distinctive under Section 7(b) of the Trademark Act, 15 U.S.C.
§ 1057(b).
As Applicant notes, the “Roaring Twenties” is an era in U.S. history associated
with prohibition, bootlegging, and speakeasies. While ROARING 20’S might be
somewhat suggestive when used in connection with liquor because it is associated
with that era in U.S. history, this does not necessarily make it a weak mark entitled
to a limited scope of protection. See In Mark Thomas, 79 USPQ2d 1021, 1027 n.12
(TTAB 2006); Andrew Jergens Co. v. Sween Corp., 229 USPQ 394, 396 (TTAB 1986)
(“‘GENTLE TOUCH,’ while somewhat suggestive, must be considered a strong mark
in view of the absence of any evidence showing third-party uses of similar marks in
the same field.”);6 In re Great Lakes Canning, Inc., 227 USPQ 483, 485 (TTAB 1985);
In re Carnation Co., 196 USPQ 716, 718 (TTAB 1977); Husky Oil Co. of De. v. Huskie
Freightways, Inc., 176 USPQ 351, 352 (TTAB 1972).
In any event, as discussed below, because the marks are very similar, the fact that
Registrant’s mark may be suggestive is of little consequence. Plus Prods. v.
Pharmavite Pharm. Corp., 221 USPQ 256, 259 (TTAB 1984) (“The mark may be
suggestive of the goods, but this characteristic relates to the strength of the mark and
is not fatal to registrability. It is well established that even highly suggestive or weak
marks are entitled to protection from registration by a subsequent user of a similar
mark for the same or similar goods.”); Husky Oil Co. of De., 176 USPQ at 352.

6 Applicant did not submit any evidence of third-party use or registration of the term “Roaring
Twenties” or “Roaring 20’S.
Serial No. 88581362

- 7 -

B. The similarity or dissimilarity of the marks.
We now turn to the DuPont likelihood of confusion factor focusing on the similarity
or dissimilarity of the marks in their entireties as to appearance, sound, connotation
and commercial impression. DuPont, 177 USPQ at 567. “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” In re Davia,
110 USPQ2d 1810, 1812 (TTAB 2014); 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).
“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.” 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)).
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 beer and
distilled liquor, the average customer is an ordinary consumer.
Registrant’s mark is ROARING 20’S and Applicant is seeking to register the mark
ROARING TWENTIES RADLER. The marks are similar because the term “Roaring
Serial No. 88581362

- 8 -

Twenties” in Applicant’s mark and “Roaring 20’S” in Registrant’s mark are similar in
appearance and identical in sound, meaning and commercial impression.
In analyzing Applicant’s mark, we find the term “Roaring Twenties” to be the
dominant part of Applicant’s mark because the word “Radler” is descriptive, if not
generic, when used in connection with beer. The Federal Circuit and the Board have
frequently held that disclaimed, descriptive matter may have less significance in
likelihood of confusion determinations. See e.g., 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, 41 USPQ2d 1531, 1533-34 (Fed. Cir. 1997)); 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.’”); In re
Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter is
often “less significant in creating the mark’s commercial impression”).
The location of the term “Roaring Twenties” as the beginning of Applicant’s mark
reinforces the importance of those terms. See Detroit Athletic Co., 128 USPQ2d at
1049 (finding “the identity of the marks’ two initial words is particularly significant
because consumers typically notice those words first”); Palm Bay Imps. Inc. v. Veuve
Clicquot Ponsardin Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir.
2005) (“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 Am., 970 F.2d 874, 23 USPQ2d 1698,
Serial No. 88581362

- 9 -

1700 (Fed. Cir. 1992) (upon encountering the marks, consumers will first notice the
identical lead word); Presto Prods. Inc. v. Nice-Pak Prods., 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 remembered”).
There is nothing improper in stating that, for rational reasons, we give more or
less weight to a particular feature of a mark, such as a common dominant element,
provided the ultimate conclusion rests on a consideration of the marks in their
entireties. Viterra, 101 USPQ2d at 1908; In re Nat’l Data Corp., 753 F.2d 1056,
224 USPQ 749, 751 (Fed. Cir. 1985).
“[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). For the reasons, discussed below, we find the peripheral differences fail to
distinguish the marks.
The term ROARING TWENTIES in Applicant’s mark is equivalent to the term
ROARING 20’S in Registrant’s mark. There is nothing in the record to persuade us
that there is any meaningful difference between the terms. See In re St. Helena Hosp.,
774 F.3d 747, 113 USPQ2d 1082, 1085 (Fed. Cir. 2014) (there is no meaningful
difference between TAKETEN and TAKE 10!); In re Vanilla Gorilla L.P., 80 USPQ2d
1637, 1640 (TTAB 2006) (“There is no difference between using the Arabic numeral
‘30’ or the word ‘thirty.’ Both mean exactly the same thing.”). Applicant’s replacement
of the numeral 20 with the word “twenty” is a minor difference consumers are not
likely to notice or remember. See Great Lakes Canning, Inc., 227 USPQ at 485
Serial No. 88581362

- 10 -

(“Moreover, although there are certain differences between the marks [CAYNA and
CANA] in appearance, namely, the inclusion of the letter ‘Y’ and the design feature
in applicant’s mark, there are also obvious similarities between them. Considering
the similarities between the marks in sound and appearance, and taking into account
the normal fallibility of human memory over a period of time (a factor that becomes
important if a purchaser encounters one of these products and some weeks, months,
or even years later comes across the other), we believe that the marks create
substantially similar commercial impressions.”). When Applicant or Registrant
couples “Twenties” or “20’S” with the identical word “Roaring,” ROARING
TWENTIES RADLER and ROARING 20’S result in marks whose overall visual
appearance is more similar than different and they sound almost identical.
With respect to the meaning and commercial impression engendered by the terms,
as discussed above, “Roaring Twenties” or “Roaring 20’S” are associated with
prohibition and bootlegging. MERRIAM-WEBSTER DICTIONARY (merriam-webster.com)
defines the “roaring twenties” as “the 1920s when referring to the way many people
lived in a wild and lively way.”7 When Applicant uses “Roaring Twenties” in
connection with beer, namely, a radler, and Registrant uses “Roaring 20’S” in

7 Accessed July 21, 2021. The Board may take judicial notice of dictionary definitions,
including online dictionaries that exist in printed format. 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); In re S. Malhotra & Co. AG, 128 USPQ2d 1100, 1104 n.9 (TTAB 2018); In re Red Bull
GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006).
Serial No. 88581362

- 11 -

connection with liquor, the terms engender the commercial impression of
speakeasies, illegal bars selling beer and liquor during the prohibition of the 1920’s.8
Because Applicant’s mark is similar in appearance and sound, and identical in
meaning and commercial impression, consumers familiar with Registrant’s mark
ROARING 20’S for distilled liquor are likely to believe that Applicant’s mark
ROARING TWENTIES RADLER for “beer, namely, radlers,” is a new ROARING 20’S
product line.
Finally, while there is no explicit rule that we must find marks are similar where
Applicant’s mark incorporates Registrant’s entire mark, where, as here, Applicant’s
mark ROARING TWENTIES RADLER incorporates all of Registrant’s mark
ROARING 20’S, the similarity of the marks increases. 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); Broadcasting 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).

8 “Roaring Twenties,” Wikipedia.org attached to Applicant’s Brief, TSDR 31.
Serial No. 88581362

- 12 -

We find that Applicant’s mark ROARING TWENTIES RADLER is very similar
to Registrant’s mark ROARING 20’S.
C. The similarity or dissimilarity and nature of the goods.
Registrant registered its mark ROARING 20’S for “distilled liquor” and Applicant
seeks to register its mark ROARING TWENTIES RADLER for “beer, namely,
radlers.” As noted above, a radler is a low-alcohol beer comprising a mixture of lager
and carbonated citrus soda.
To prove that distilled liquor and radlers are related products, the Examining
Attorney submitted third-party, used-based registrations for beer, and distilled liquor
and third-party websites advertising beer and distilled liquor under the same mark.
Third-party registrations for goods listed in both the application and registration at
issue based on use in commerce may have probative value to the extent that they
serve to suggest that the listed goods are of a type that may emanate from the same
source. In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-1786 (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). We list below the registrations, with relevant portions
of the identifications:9
MARK REG. NO. GOODS
16 HOBBS TAVERN &
BREWING CO.
4951746 Beer; shandy; distilled spirits
BREWVO 4978543 Beer; shandy; distilled spirits

9 May 27, 2020 Office Action (TSDR 16-47).
Dictionary.com based on THE RANDOM HOUSE UNABRIDGED DICTIONARY (2021) (accessed
July 13, 2021) defines “shandy” as “a mixture of beer and lemonade.” Lemon is a citrus flavor.
MERRIAM-WEBSTER DICTIONARY (merriam-webster.com) (accessed July 14, 2021) defines
citrus using lemon as an example of a citrus fruit.
Serial No. 88581362

- 13 -

MARK REG. NO. GOODS
SWING LUBE 4675259 Beer; shandy; spirits and liqueurs
FALLING APPLE 4947252 Beer; shandy; distilled spirits
CHE 5096378 Beer; shandy; alcoholic beverages
RAILTOWN BREWING
CO.
5224148 Beer; shandy; alcoholic beverages
ENDURE 4978216 Beer; shandy; spirts and liqueurs
TERP 5166249 Beer; shandy; spirits and liqueurs
RANT BREWING
COMPANY
5388017 Beers; shandy; distilled spirits
BROKEN TRAIL
SPIRITS + BREW
5553256 Beer; shandy; distilled spirits

The Examining Attorney submitted excerpts from the third-party websites listed
below to show that beer and distilled liquors are related products:
● The Dogfish website (dogfish.com) displays DOGFISH HEAD and shark design
used for beer and spirits.10

10 November 18, 2019 Office Action (TSDR 19-27).
Serial No. 88581362

- 14 -

Dogfish also advertised an I CAME TO DROP BALMS kolsch-based beer with
lemon balm to create a shandy-like taste.11
● The Rogue website (rogue.com) displays the mark ROGUE and a star design for
beer and spirits.12 While Rogue “Double Time Cherry Lime” may not be a radler, lime
is a citrus fruit making this beer similar to a radler.

Beer Advocate website (beeradvocate.com) reviewed Rogue Ales’ Voodoo
Doughnut Lemon Chiffon Crueller Ale and classified it as a “fruit and field beer”
style.13

11 May 27, 2020 Office Action (TSDR 6).
12 November 18, 2019 Office Action TSDR 19-27).
13 May 27, 2020 Office Action (TSDR 8).
Serial No. 88581362

- 15 -

● The Mount Defiance website (mtdefiance.com) displays the mark OLD
VOLDSTEAD’S for a summer shandy and spirits.14

14 May 27, 2020 Office Action (TSDR 65-70).
Serial No. 88581362

- 16 -

● The Leinenkugel website (leinie.com) displays the LEINENKUGEL mark for
beer, including a summer shandy.15 A news article in the Just-Drinks website (just-
drinks.com) announced that Molson Coors Beverage Company, brewer of
Leinenkugel, and Chippewa River Distillery launched a cranberry ginger schnapps.16

● The Lexington Brewing & Distilling Co. website (lexingtonbrewingco.com)
displays a seal with LEXINGTON and a horse head design to identify beer and
whiskey.17

15 May 27, 2020 Office Action (TSDR 78-80).
16 May 27, 2020 Office Action (TSDR 74).
17 November 18, 2019 Office Action (TSDR 28-34).
Serial No. 88581362

- 17 -

● Ozark Distillery and Ozark Brewery website (ozarkdistillery.com) display the
mark OZARK for beer and spirits.18

Applicant argues that its product is a radler and not beer per se. However, the
evidence shows that a radler is a type of beer.19 Moreover, Applicant has not
submitted any evidence showing consumers distinguish a radler as a specialty beer

18 November 18, 2019 Office Action (TSDR 35-40).
19 Applicant’s Brief, pp. 7-8 (9 TTABVUE 9-10).
Serial No. 88581362

- 18 -

any more than they distinguish a shandy as a specialty beer or that consumers
distinguish beer per se from specialty beer.
Applicant asserts because there is no per se rule that all alcoholic beverages are
related products,20 “the particular record must be analyzed before making an
assessment as to whether the specific alcoholic beverages are related.”21 However, the
only probative evidence in this case is the above-noted evidence the Examining
Attorney submitted and it shows that brewers/distillers often identify beer and spirits
by the same mark.
Applicant contends that the Examining Attorney’s evidence is insufficient to prove
that beer and distilled liquor are related products because the Examining Attorney
only submitted evidence of a “handful of the more than 8,000 craft brewers
nationwide that have expanded into limited offerings of distilled spirits or liquor
under the same mark.”22 To support its contention, Applicant refers to an article
posted in the website via a link.23 Applicant did not submit a
copy of the article. Providing only a website address or hyperlink to Internet
materials is insufficient to make such materials of record. In re Olin Corp.,
124 USPQ2d 1327, 1332 n.15 (TTAB 2017); In re Powermat Inc., 105 USPQ2d 1789,
1791 (TTAB 2013); In re HSB Solomon Assocs. LLC, 102 USPQ2d 1269, 1274 (TTAB
2012). Because of the transitory nature of Internet postings, websites referenced only

20 Applicant’s Brief, pp. 5-6 (9 TTABVUE 7-8).
21 Applicant’s Brief, p. 6 (9 TTABVUE 8).
22 Applicant’s Brief, pp. 6-7 (9 TTABVUE 8-9).
23 Applicant’s Brief, p. 7 n.2 (9 TTABVUE 9).
Serial No. 88581362

- 19 -

by address or hyperlinks may be modified or deleted at a later date without
notification. See Safer Inc. v. OMS Invs. Inc., 94 USPQ2d 1031, 1039 (TTAB 2010).
Thus, information identified only by website address or hyperlink is not subject to
verification by the Examining Attorney (or an applicant) to corroborate or refute. See
In re HSB Solomon Assocs. LLC, 102 USPQ2d at 1274. Accordingly, we will not
consider such evidence or Applicant’s argument relating to the probative value of that
evidence.24
Applicant argues,
Consumers readily recognize distilled liquor and beer as
separate and distinct products. Each of these products is
marketed differently and sold in different product
packaging with alcohol content included in the product
packaging. Further, Applicant’s goods are marketed as a
unique, low alcohol beverage composed of beer and lemon
soda. Liquor and distilled spirits are typically sold in glass
or plastic bottles; beer is typically sold in aluminum cans,
kegs, or small glass bottles. These products may
sometimes, but not always, be sold in similar retail outlets,
but they do not directly compete for shelf space.25
___
The addition of the term “radler” in Applicant’s mark
diminishes any likelihood of consumer confusion with
distilled liquor products, as the term “radler” plainly
indicates that the product is not a distilled spirit and does
not contain distilled liquor. Applicant’s product is therefore
distinguishable from the goods sold under the Cited Marks
due to the unique nature of the product, being a mixture of

24 Applicant refers to the article posted in the beveragedaily.com website for the first time in
its brief. As indicated in the Preliminary Issue section, evidence submitted for the first time
in a brief is not timely. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). If Applicant had filed
a copy of the article instead of relying on a link, the Examining Attorney may have objected
to the article because she did not have an opportunity to verify or rebut the information or
supplement her evidentiary showing.
25 Applicant’s Brief, p. 10 (9 TTABVUE 12).
Serial No. 88581362

- 20 -

beer and lemonade, making consumer confusion with
registrant’s distilled spirits and liquor products non-
existent.26
However, the issue is not whether purchasers will confuse Applicant’s radlers and
Registrant’s distilled liquor, but rather whether there is a likelihood of confusion as
to the source of the radlers and liquor. See In re Cook Med. Techs. LLC, 105 USPQ2d
1377, 1380 (TTAB 2012); Helene Curtis Indus. Inc. v. Suave Shoe Corp., 13 USPQ2d
1618, 1624 (TTAB 1989); In re Rexel Inc., 223 USPQ 830 (TTAB 1984). As indicated
in the similarity or dissimilarity of the marks analysis, consumers familiar with
Registrant’s mark ROARING 20’S for distilled liquor are likely to believe that
Applicant’s mark ROARING TWENTIES RADLER for “beer, namely, radlers,” is a
new ROARING 20’S product line.
Finally, Applicant submits because Registrant deleted beer from the identification
of goods in its ROARING 20’S registration when it filed its renewal application and
declaration of use, Registrant no longer intends to use its mark to identify beer and
“[t]his fact alone should be determinative to show that there is no likelihood of
confusion.”27 It does not follow that because Registrant deleted beer from the cited
registration that Registrant no longer intends to use the mark to identify beer or that
“beer, namely, radlers,” and “distilled liquor” are not related products.
First, if Registrant or its predecessor-in-interest originally registered ROARING
20’S for beer, we can infer that at one time Registrant or its predecessor-in interest

26 Applicant’s Brief, pp. 10-11 (9 TTABVUE 12-13).
27 Applicant’s Brief, pp. 8-9 (9 TTABVUE 10-11).
Serial No. 88581362

- 21 -

used ROARING 20’S to identify beer. The only things we can infer from the fact that
Registrant deleted beer from the registration when it filed the renewal application
and declaration of use is that at the time Registrant filed those documents, it was no
longer using ROARING 20’S to identify beer or that it did not want to pay the fee to
renew the registration for beer.
Second, the fact that Registrant deleted beer from the registration when it filed
the renewal application and declaration of use does not mean that Registrant is not
currently using ROARING 20’S to identify beer.
Finally, assuming Registrant no longer intends to use ROARING 20’S to identify
beer does not negate the probative value of the third-party registration and use
evidence the Examining Attorney submitted.
We find that Applicant’s “beer, namely, radlers” is related to Registrant’s “distilled
liquor.”
D. Established, likely-to-continue channels of trade and classes of
consumers.
The third-party website evidence shows that brewery/distilleries offer the sale of
beer and distilled liquor. In addition, the evidence shows that many of the
brewery/distilleries feature taprooms/restaurants and sponsor events where they sell
their products. Thus, brewery/distilleries offer beer and distilled liquor in at least
some of the same channels of trade to some of the same classes of consumers.
E. Conclusion
Because the marks are very similar, the goods are related and, third parties offer
beer and distilled liquor in some of the same channels of trade to some of the same
Serial No. 88581362

- 22 -

classes of consumers, we find that Applicant’s mark ROARING TWENTIES RADLER
for “beer, namely, radlers” is likely to cause confusion with the registered mark
ROARING 20’s for “distilled liquor.”
Decision: We affirm the refusal to register Applicant’s mark ROARING
TWENTIES RADLER under Section 2(d) of the Trademark Act.