Two Roads Brewing Company LLCv.Parker Cain

Trademark Trial and Appeal Board

Mar 29, 2021

91248700 (T.T.A.B. Mar. 29, 2021)

This Opinion is Not a
Precedent of the TTAB

Mailed: March 29, 2021

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Two Roads Brewing Company LLC
v.
Parker Cain
_____

Opposition No. 91248700
_____

Andy I. Corea of Murtha Cullina LLP
for Two Roads Brewing Company LLC.

Parker Cain, pro se.
_____

Before Cataldo, Taylor, and Heasley
Administrative Trademark Judges.

Opinion by Taylor, Administrative Trademark Judge:
Parker Cain (“Applicant”) seeks registration on the Principal Register for the
mark TWO ROADS in standard character form, for “Sportswear clothing, namely,
socks, shorts, pants, shirts, sweatshirts, and sport jackets” in International Class 25.1

1 Application Serial No. 88278911, filed January 28, 2019, is 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).

Opposition No. 91248700
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Two Roads Brewing Company LLC (“Opposer”) has opposed registration of
Applicant’s mark on the ground of priority and likelihood of confusion under Section
2(d) of the Trademark Act, 15 U.S.C. § 1052(d). Opposer pleaded ownership of the
previously used and registered mark TWO ROADS in standard character form2 for
“Beer, ale and lager; Beer, ale and porter; Beer, ale, lager, stout and porter; Beer, ale,
lager, stout, porter, Beer-based coolers; Beers; Black beer; Brewed malt-based
alcoholic beverage in the nature of a beer; Coffee-flavored beer; Flavored beers; Malt
beer; Non-alcoholic beer; Pale beer; Porter” in International Class 32.3 Opposer,
pursuant to Trademark Rule 2.122(d)(1), 37 C.F.R. § 2.122(d)(1), included, as an
exhibit to the notice of opposition, a copy of its pleaded registration showing current
status and title taken from the USPTO’s Trademark Status & Document Retrieval
(TSDR) electronic database.4

2 Opposer’s Registration No. 4432960 issued on November 12, 2013; Section 8 affidavit
accepted, Section 15 affidavit acknowledged.
3 1 TTABVUE. Citations in this opinion are to the TTABVUE docket entry number and,
where applicable, the electronic page number where the document or testimony appears.
Because the Board primarily uses TTABVUE in reviewing evidence, it prefers that citations
to non-confidential parts of the record include the TTABVUE docket entry number and the
TTABVUE page number. See RxD Media, LLC v. IP Application Dev. LLC, 125 USPQ2d
1801, 1804 (TTAB 2018); TRADEMARK TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE
(“TBMP”) §§ 801.01, 801.03 (2020).
4 1 TTABVUE 8-10. Opposer also submitted with its notice an exhibit containing images of
apparel items bearing its TWO ROADS design marks. 1 TTABVUE 12. We do not consider
this exhibit as evidence because “an exhibit attached to a pleading is not evidence on behalf
of the party to whose pleading the exhibit is attached, and must be identified and introduced
in evidence as an exhibit during the period for the taking of testimony.” Trademark Rule
2.122(c), 37 C.F.R. § 2.122(c).
Opposition No. 91248700
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Additionally, Opposer alleges prior common law ownership of the mark TWO
ROADS in connection with “various items of apparel sold in interstate commerce
since at least as early as 2012.”5
Opposer also pleads ownership of an application for TWO ROADS6 in standard
character form, for “clothing, namely, headwear, tops, shirts, sweatshirts, vests,
sweaters, scarves, bandannas” in International Class 25, which Opposer claims has
been suspended by the USPTO based on Applicant’s prior-filed application.7
Applicant, in his answer, has denied the salient allegations in the notice of
opposition. 8
I. The Record
The record includes the pleadings and by operation of Trademark Rule 2.122, 37
CFR § 2.122, the file of the subject application. As noted above, Opposer made of

5 1 TTABVUE 4.
6 Application Serial No. 88311838, filed February 22, 2019, is based upon Applicant’s
allegation of use of the mark in commerce under Section 1(a) of the Trademark Act, 15 U.S.C.
§ 1051(a).
7 1 TTABVUE.
8 In his answer, Applicant asserted eight allegations characterized as “Affirmative Defenses.”
4 TTABVUE 4-6. The “First Affirmative Defense” that Opposer fails to state a claim upon
which relief can be granted does not set forth an affirmative defense; the proper measure
would have been for Applicant to file a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
Applicant did not file such a motion. Applicant’s “Second Affirmative Defense” that there is
no likelihood of confusion between the parties’ marks constitutes a mere amplification of the
denials in the answer and has been treated as such. Applicant did not pursue, at trial or in
briefing, the third through eighth affirmative defenses for laches, estoppel, waiver,
acquiescence, unclean hands, and lack of knowledge and willful intent, so these defenses have
been forfeited. See TiVo Brands LLC v. Tivoli, LLC, 129 USPQ2d 1097, 1100-01 (TTAB 2018)
(affirmative defenses waived because not pursued at trial or argued in brief).
Opposition No. 91248700
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record a copy of its pleaded registration with its notice of opposition. During its
testimony period, Opposer also made of record the following:
1. Opposer’s first notice of reliance on thirty-nine (39) third-party registrations
identifying both clothing and beer in International Classes 25 and 32.9
2. Opposer’s second notice of reliance on internet evidence in the nature of
screen captures of three websites selling beer branded clothing.10
3. The testimony declaration, with exhibits, of Brad Hittle, president of
Opposer.11
Applicant did not take any testimony or file other evidence during Applicant’s
testimony period. Only Opposer filed a brief. See TBMP § 801.02(b) (“The filing of a
brief on the case is optional, not mandatory, for a party in the position of defendant.”);
see also 37 C.F.R. § 2.128(a)(1).

II. Opposer’s Entitlement to a Cause of Action12
Entitlement to a statutory cause of action is an essential element in every inter
partes case. See Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965
F.3d 1370, 2020 USPQ2d 10837, at *3 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v.

9 7 TTABVUE 2-84.
10 7 TTABVUE 85-113.
11 8 TTABVUE.
12 Board decisions have previously analyzed the requirements of Sections 13 and 14 of the
Trademark Act, 15 U.S.C. §§ 1063-64, under the rubric of “standing.” Despite the change in
nomenclature, our prior decisions and those of the Federal Circuit interpreting Section 13
and 14 remain applicable. See Spanishtown Enters., Inc. v. Transcend Resources, Inc., 2020
USPQ2d 11388, at *2 (TTAB 2020).
Opposition No. 91248700
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Static Control Components, Inc., 572 U.S. 118, 109 USPQ2d 2061, 2067 n.4 (2014)).
A party in the position of plaintiff may oppose registration of a mark when it
demonstrates an interest falling within the zone of interests protected by the statute,
15 U.S.C. § 1063, and a reasonable belief in damage that is proximately caused by
registration of the mark. Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 2020 USPQ2d
11277, at * 6-7 (Fed. Cir. 2020).
Opposer’s entitlement to oppose registration of Applicant’s mark is established by
its pleaded registration, properly made of record with its notice of opposition, which
the record shows to be valid and subsisting, and owned by Opposer. See, e.g.,
Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir.
2000); N.Y. Yankees P’ship v. IET Prods. & Servs., Inc., 114 USPQ2d 1497, 1501
(TTAB 2015). Opposer also has established its entitlement, as discussed in more
detail below, by demonstrating its common law use of the TWO ROADS design marks
in connection with apparel goods. See Giersch v. Scripps Networks Inc., 90 USPQ2d
1020, 1022 (TTAB 2009) (common-law use sufficient to establish standing).13

13 We do not rely on Opposer’s pleaded application Serial No. 88311838 in concluding that
Opposer is entitled to a statutory cause of action because Opposer did not make the relevant
portion of the application file of record. Cf. WeaponX Performance Products Ltd. v. Weapon X
Motorsports, Inc., 126 USPQ2d 1034, 1040 (TTAB 2018) (plaintiff’s pleaded pending
application is not automatically of record). See also Weatherford/Lamb Inc. v. C&J Energy
Servs. Inc., 96 USPQ2d 1834, 1837 (TTAB 2010) (standing established where Office action
suspending plaintiff’s application pending possible refusal based on alleged likelihood of
confusion with defendant’s registration made of record).

Opposition No. 91248700
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III. Priority
To establish priority in a likelihood of confusion claim brought under Trademark
Act Section 2(d), a party must prove that, vis-à-vis the other party, it owns “a mark
or trade name previously used in the United States ... and not abandoned....”
Trademark Act Section 2, 15 U.S.C. § 1052. A party may establish its prior
proprietary rights in a mark through ownership of a registration, actual use or
through use analogous to trademark use. See Trademark Act Sections 2(d) and 45, 15
U.S.C. §§ 1052(d) and 1127; T.A.B. Sys. v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d
1879 (Fed. Cir. 1996). Because Opposer’s pleaded registration is properly of record,
priority is not at issue in the opposition with respect to the TWO ROADS mark for
the beer goods identified therein. See King Candy Co. v. Eunice King’s Kitchen, Inc.,
496 F.2d 1400, 182 USPQ 108 (CCPA 1974).
In order to prevail on its claim of likelihood of confusion based on its common law
claim of ownership of the TWO ROADS mark for apparel, the mark must be
distinctive, inherently or otherwise, and Opposer must show priority of use. See
Towers v. Advent Software, Inc., 913 F.2d 942, 16 USPQ2d 1039, 1041 (Fed. Cir.
1990); Otto Roth & Co. v. Universal Foods Corp., 640 F.2d 1317, 209 USPQ 40 (CCPA
1981). Applicant did not file a brief and thus we are unaware of any challenges to the
distinctiveness of Opposer’s pleaded common law TWO ROADS mark and, in fact,
Applicant seeks registration of the same mark. Therefore, we find that the mark is
inherently distinctive. Giersch, 90 USPQ2d at 1023 (TTAB 2009) (“Respondent has
not raised an issue as to the distinctiveness of petitioner’s mark or otherwise put
Opposition No. 91248700
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petitioner on notice of this defense, and therefore we find that the mark is
distinctive.”) (citing Wet Seal Inc. v. FD Mgmt., Inc., 82 USPQ2d 1629, 1634 (TTAB
2007)).
As to common law priority, the record shows that Opposer has been using the
TWO ROADS marks as displayed in the following images on or in connection with
apparel since as early as December 2012.14 The record also shows that Opposer
continuously has used the TWO ROADS and design marks since December of 2012,
as evidenced by its sales figures showing substantial sales of apparel under the marks
in each year from 2013 to 2019.15 Examples of use of the TWO ROADS design marks
on apparel, including shirts and jackets, are shown below:

14 8 TTABVUE 3-4 (Hittle decl. ¶¶ 13, 21). Since Opposer did not state a specific date in
December, we consider Opposer’s first use date as December 31, 2012.
15 8 TTABVUE 3-4 (Hittle decl. ¶¶ 21-23). Opposer’s sales and advertising information has
been designated as confidential, and we refer to this information only generally.
Opposition No. 91248700
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8 TTABVUE 15, 20 (Hittle decl. Ex. 2).
Applicant did not prove, or even claim, a date of first use of his applied-for mark
prior to the filing date of its application. Nonetheless, Applicant may rely on his
January 28, 2019 filing date as his first use date. Embarcadero Tech. Inc. v. RStudio
Inc., 105 USPQ2d 1825, 1834 (TTAB 2013) (“For priority purposes, applicant, at the
very least, can rely on the filing date of its trademark applications.”); Kraft Grp. LLC
v. Harpole, 90 USPQ2d 1837, 1841(TTAB 2009) (“A party that has filed an intent-to-
use application may rely on the filing date of its application to establish priority.”).
Opposition No. 91248700
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Opposer’s demonstrated first use date of its common law TWO ROADS and design
marks is well before the filing date of Applicant’s intent-to-use application, and
establishes Opposer’s priority.
IV. Likelihood of Confusion
Our determination of the issue of likelihood of confusion is based on an analysis
of all of the facts in evidence that are relevant to the factors bearing on the issue. In
re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973). In
any likelihood of confusion analysis, two key considerations are the similarities
between the marks and the similarities between the goods. See Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24 (CCPA 1976). We consider
these factors and any likelihood of confusion factors about which the parties
introduced evidence or argued.
A. Strength of Opposer’s Mark
Opposer’s president testified that “the TWO ROADS mark has acquired enormous
value and has become extremely well known to the public and to the trade as
identifying and distinguishing Opposer exclusively and uniquely as the source of
goods under the mark.”16 Opposer supported its position that the TWO ROADS marks
are strong with the declaration of its president, Mr. Brad Hittle, who attested that:
(1) Opposer has won multiple awards for its beer bearing the TWO ROADS mark; (2)
the sales revenues and advertising expenditures for Opposer’s beer and apparel
offered under the TWO ROADS marks are substantial; (3) Opposer has a following of

16 8 TTABVUE 5 (Hittle decl. ¶ 5).
Opposition No. 91248700
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tens of thousands of people on its social media pages; and (4) Opposer sells its beer
and apparel goods under the TWO ROADS marks in its brewery store and a taproom
stationed in an international airport.17
The strength of a mark rests on the extent to which “a significant portion of the
relevant consuming public . . . recognizes the mark as a source indicator.” Joseph
Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733,
1734 (Fed. Cir. 2017) (citing Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison
Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1694 (Fed. Cir. 2005)).
Such strength “may be measured indirectly by the volume of sales and advertising
expenditures in connection with the [goods] sold under the mark, and other factors
such as length of time of use of the mark; widespread critical assessments; notice by
independent sources of the [goods] identified by the mark []; and the general
reputation of the [goods].” Tao Licensing, LLC v. Bender Consulting Ltd., 125
USPQ2d 1043, 1056 (TTAB 2017); see also Bose Corp. v. QSC Audio Prods. Inc., 293
F.3d 1367, 63 USPQ2d 1303, 1305-06 (Fed. Cir. 2002).
With respect to the use of the Opposer’s TWO ROADS mark on or in connection
with beer goods, Opposer’s evidence of commercial strength in the form of high sales
volume and revenue under the mark, substantial advertising expenditures,18 and a
sizeable social media following, shows a considerable amount of consumer exposure

17 8 TTABVUE 4-5 (Hittle decl. ¶¶ 17-27).
18 Opposer made of record the revenues generated and units of product sold from 2012
through 2019, as well as its associated advertising expenditures. As previously noted, the
revenue figures and advertising figures are confidential. 9 TTABVUE. We can say that on
their face the numbers are relatively substantial.
Opposition No. 91248700
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to Opposer’s TWO ROADS mark and reflects a fair degree of renown of Opposer’s
TWO ROADS mark in connection with beer. We thus find it to be somewhat
commercially strong in relation to beer, weighing slightly in favor of a finding of
likelihood of confusion.
The evidence relating to the commercial strength of Applicant’s TWO ROADS and
design marks used on or in connection with clothing shows less consumer recognition,
and appears to show that efforts to sell and advertise apparel are ancillary to the
more substantial commercial success of Opposer’s TWO ROADS beer brand. Thus,
the evidence does not show that Opposer’s common law TWO ROADS design marks
have achieved more than an average level of consumer exposure or renown as a source
indicator for apparel.
Therefore, we accord the registered TWO ROADS mark slightly stronger than
average protection for use with beer and accord the common law TWO ROADS and
design marks used with apparel the normal degree of protection accorded an
inherently distinctive mark. Bell’s Brewery, Inc. v. Innovation Brewing Co., 125
USPQ2d 1340, 1347 (TTAB 2017). Even if we were to have found the marks to be of
average strength for both beer and apparel, our ultimate ruling on likelihood of
confusion on this record would remain the same.
B. Similarity of the Marks
In a likelihood of confusion determination, 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,
Opposition No. 91248700
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1321, 110 USPQ2d 1157, 1160 (Fed. Cir. 2014) (quoting Palm Bay Imps., 73 USPQ2d
at 1691). “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, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1748
(Fed. Cir. 2017).
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
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 Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012).
We consider first Applicant’s standard character TWO ROADS mark vis-à-vis
Opposer’s registered TWO ROADS standard character mark and find them identical
in appearance, sound, connotation, and commercial impression. Where word marks
Opposition No. 91248700
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are identical and neither suggestive nor descriptive of the goods associated with
them, the identity of marks factor weighs heavily against the applicant. In re Majestic
Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1204 (Fed. Cir. 2003). Accordingly,
the similarity of marks factor weighs heavily in Opposer’s favor with regard to
Opposer’s registered mark.
As depicted above, Opposer has demonstrated prior use of the following common
law TWO ROADS and design marks: (1) a design of two crossing arms pointing in
different directions with the wording TWO ROADS appearing in large letters on the
arms (TWO ROADS and cross arm design mark); (2) the same crossing arms design
with the numeral “2” above the arms and a circular background containing the words
“BREWING COMPANY” in small letters (TWO ROADS BREWING and design
mark); and (3) the same crossing arms design with the numeral “2” above the arms
and a circular background containing the words “BREWING COMPANY” in small
letters and the diminutive wording “STRATFORD CT” inside the circle (TWO ROADS
STRATFORD CT and design mark). With regard to Opposer’s pleaded common law
marks, we confine our analysis concerning the remaining likelihood of confusion
factors to Opposer’s TWO ROADS and cross arm design mark because it is the closest
mark to Applicant’s mark. If confusion is likely with this mark, there is no need to for
us to consider the likelihood of confusion with the other pleaded common law marks,
while if there is no likelihood of confusion between Applicant’s mark and Opposer’s
TWO ROADS and cross arm design mark, then there would be no likelihood of
Opposition No. 91248700
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confusion with the other cited marks. See, e.g., In re Max Capital Group Ltd., 93
USPQ2d 1243, 1245 (TTAB 2010).
The dominant feature of Opposer’s TWO ROADS and cross arm design marks is
the wording TWO ROADS, which appears in large, clear lettering across the center
of the mark. When evaluating a composite mark consisting of words and a design, the
word portion is normally accorded greater weight because it is likely to make a
greater impression upon purchasers, be remembered by them, and be used by them
to refer to or request the goods. In re Aquitaine Wine USA, LLC, 126 USPQ2d 1181,
1184 (TTAB 2018) (citing In re Viterra, 101 USPQ2d at 1908).
Comparing the marks as whole, we find that Applicant’s mark TWO ROADS and
Opposer’s TWO ROADS and cross arm design mark are similar in appearance, sound
connotation and commercial impression in that they both share the dominant or only
wording TWO ROADS. In addition, because Applicant seeks registration of his mark
in standard characters, its display is not limited to any particular font style, size, or
color. We therefore must consider that it might be used in any style, including the
same or similar lettering style as Opposer’s, including the letter arrangement. See In
re Viterra, 101 USPQ2d at1909-10; Citigroup Inc. v. Capital City Bank Group, Inc.,
637 F.3d 1344 , 98 USPQ2d 1253, 1259 (Fed. Cir. 2011).
While there are differences between the two marks when viewed on a side-by-side
basis, they are more similar in sound, appearance, and commercial impression than
they are dissimilar due to the shared wording TWO ROADS. The similarity of marks
factor thus weighs in Opposer’s favor with regard to its common law mark.
Opposition No. 91248700
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C. Similarity of Goods and Trade Channels
It is not necessary that the goods be identical or competitive, or even that they
move in the same channels of trade, to support a finding of likelihood of confusion.
Rather, it is sufficient that the goods are related in some manner, or that the
circumstances surrounding their marketing are such that they would or could be
encountered by the same persons in situations that would give rise, because of the
similarity of the marks, to a mistaken belief that they originate from the same source
or that there is an association or connection between the sources of the goods. Coach
Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1721 (Fed.
Cir. 2012); In re Thor Tech Inc., 90 USPQ2d 1634, 1635 (TTAB 2009).
Applicant’s goods are identified as “sportswear clothing, namely, socks, shorts,
pants, shirts, sweatshirts, and sport jackets.” Opposer has established common law
use of its TWO ROADS and cross arm design mark on or in connection with shirts
and jackets. Opposer’s goods and Applicant’s goods are identical to that extent.19
Because the respective goods are in-part identical, those identical goods are
“presumed to travel in the same channels of trade to the same class of purchasers.”
In re Viterra, 101 USPQ2d at 1908 (quoting Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 1268, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002)).

19 Applicant’s identification of goods identifies additional clothing items. However, we need
not find similarity as to each and every product listed in the description of goods. It is
sufficient for a refusal based on likelihood of confusion that relatedness is established for any
item encompassed by the identification of goods in a particular class in the application. See,
e.g., Double Coin Holdings Ltd. v. Tru Dev., 2019 USPQ2d 377409, *6 (TTAB 2019) (citing
Tuxedo Monopoly, Inc. v. Gen. Mills Fun Grp., 648 F.2d 1335, 209 USPQ 986, 988 (CCPA
(1981)).
Opposition No. 91248700
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Additionally, Opposer’s registration identifies beer and various types of beers in
its pleaded registration. To support the relatedness of those goods with Applicant’s
clothing items, Opposer has made of record numerous use-based, third-party
registrations20 showing that the same entity has registered the same mark for both
beer and clothing goods. “Third-party registrations which cover a number of differing
goods and/or services, and which are based on use in commerce, although not evidence
that the marks shown therein are in use on a commercial scale or that the public is
familiar with them, may nevertheless have some probative value to the extent that
they may serve to suggest that such goods or services are of a type which may
emanate from a single source.” In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1470
n.6 (TTAB 1988), aff’d, 864 F.2d 149 (Fed. Cir. 1988). See also L’Oreal S.A. v. Marcon,
102 USPQ2d at 1439-40; In re Albert Trostel & Sons Co., 29 USPQ2d 1783, 1785-86
(TTAB 1993). These third-party registrations include, by way of example:
Reg. No. 5955940—FORESTRY CAMP for, inter alia, “T-shirts; Short-
sleeved or long-sleeved t-shirts; [and] Sweatshirts” in International Class 25
and “Beer” in International Class 32.

Reg. No. 5958523—RESIDENT CULTURE for “Shirts” in International
Class 25 and “Beer” in International Class 32.

20 7 TTABVUE 2-83. We have not considered Reg. No. 5792586 (7 TTABVE 36-37) because it
only identifies “hats” in International Class 25, and Applicant’s identification of goods does
not include “hats” or any goods that encompass “hats.” We also have not considered Reg.
No. 5756221 because it registered under Section 44(e) of the Trademark Act, and no Section
8 declaration of use has been filed. See Calypso Technology Inc. v. Calypso Capital
Management LP, 100 USPQ2d 1213, 1221 (TTAB 2011) (third party registrations based on
international registrations are not evidence that the marks have been used in the United
States for the stated goods and services).
Opposer also made of record screen captures of three websites selling beer branded
clothing. We do not find this evidence probative because it does not show use of the same
mark by the same entity on or in connection with both beer and clothing items.

Opposition No. 91248700
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Reg. No. 5738665—BEER ARMY for “clothing, including shirts,” in
International Class 25 and “Beer” in International Class 32.

Reg. No. 5763494—SPACE TRAVELER for “Shirts; [and] T-shirts” in
International Class 25 and “Beer” in International Class 32.

Reg. No. 5806389—PHRESH PHLAVORS for, inter alia, “Clothing, namely,
shirts [and] sweatshirts” in International Class 25 and “Beer [and] Craft
Beers” in International Class 32.

Reg. No. 5828431—SPANISH MARIE for, inter alia, “Shirts [and]
Sweatshirts” in International Class 25 and “Beer” in International Class 32.

Reg. No. 5863348—EL CATADOR CLUB for “Shirts” in International Class
25 and “Beer” in International Class 32.

Reg. No. 5910373—DOUBLE COAST for, inter alia, “T-shirts [and] Tank
tops” in International Class 25 and “Ale; Beer; [and] Lager” in International
Class 32.

Reg. No. 5917995—GIMME SELTZER for, inter alia, “Polo shirts; Shirts;
[and] T-shirts” in International Class 25 and “Beer [and] Flavored beer” in
International Class 32.

Reg. No. 5972705—HARLAND BREWING for, inter alia, “Clothing, namely,
shirts and sweatshirts” in International Class 25 and “Craft beer” in
International Class 32.

In view of the third-party registration evidence, we find the beer goods identified
in the pleaded registration are commercially related to the clothing goods identified
by Applicant, all being goods that may emanate from the same source under the same
mark. We find so especially considering the identical nature of the marks. Where the
marks of the respective parties are identical or virtually identical, as in this case, the
degree of similarity or relatedness between the goods needed to support a finding of
likelihood of confusion declines. See In re Country Oven, Inc., 2019 USPQ2d 443903,
at *5 (TTAB 2019) (citing In re i.am.symbolic, 116 USPQ2d at 1411, aff’d, 866 F.3d
Opposition No. 91248700
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1315, 123 USPQ2d 1744 (Fed. Cir. 2017)); see also In re Shell Oil Co., 992 F.2d 1204,
1207, 26 USPQ2d 1687, 1689 (Fed. Cir. 1993).
In sum, Opposer’s evidence is sufficient to show that Applicant’s “sportswear
clothing, namely, socks, shorts, pants, shirts, sweatshirts, and sport jackets” are
commercially related to both Opposer’s shirts and jackets as used on or in connection
with its common law marks, and to its beers identified in its registration. We further
find based on the above that Applicant’s identified goods would move in the same
trade channels and be offered to the same consumers as those for Opposer’s shirts
and jackets.
The DuPont factors concerning the similarities of the goods and the channels of
trade and classes of consumers thus favor a finding of likelihood of confusion.
D. Conclusion
After considering all of the evidence made of record pertaining to the issue of
likelihood of confusion, as well as all of the arguments relating thereto, we conclude
that confusion is likely between Applicant’s TWO ROADS mark for “clothing, namely,
headwear, tops, shirts, sweatshirts, vests, sweaters, scarves, bandannas” and
Opposer’s: (1) registered TWO ROADS mark for beer and various types of beer; and
(2) common law TWO ROADS cross arm design mark for apparel. We conclude so as
to Opposer’s registered mark principally due to the identical nature of the marks and
the relatedness of the goods. As to Opposer’s common law marks, we conclude so
principally due to the highly similar nature of the marks, the in-part identical goods,
and the presumed identical trade channels and classes of consumers.
Opposition No. 91248700
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Decision: The opposition on the ground of likelihood of confusion is sustained.