Altamura Distilleries SRL

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: November 12, 2025
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Altamura Distilleries SRL
_____
Serial No. 97600477
_____
Jackie Schwartz of Jack Schwartz & Associates, PLLC,
for Altamura Distilleries SRL.
Robert Cohen, Trademark Examining Attorney, Law Office 103,
Stacy Wahlberg, Managing Attorney.
_____
Before Larkin, Lebow and Bradley,
Administrative Trademark Judges.
Opinion by Lebow, Administrative Trademark Judge:
Applicant, Altamura Distilleries SRL, seeks to register the composite mark
(“ALTAMURA DISTILLERIES” disclaimed) on the Principal Register for “vodka, gin,
whisky, blended whisky, malt whisky, wheat absinthe, all of the aforementioned

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distilled using wheat originating from Altamura, Italy,” in International Class 33.1
The Trademark Examining Attorney ultimately refused registration under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s
mark is likely to cause confusion with the following marks on the Principal Register
for “wine” in International Class 33, both owned by Registrant Frank Altamura:2
(1) ALTAMURA (typeset),3 and
(2) (“NAPA VALLEY” disclaimed).4
1 Application Serial No. 97600477 (“the Application”) was filed on September 21, 2022 under
Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s allegation of a
bona fide intention to use the mark in commerce. “The mark consists of a gray lion with the
dark gray wording ‘ALTAMURA DISTILLERIES’ superimposed over the lion. The mark is
placed on a light gray background.” The colors light gray, gray, and dark gray are claimed as
features of the mark.
2 Earlier during prosecution, the Examining Attorney had approved the Application for
publication. See August 30, 2023 TRAM Snapshot of Publication Approval. However, the
Office subsequently restored jurisdiction to the Examining Attorney for consideration of
evidence submitted with a Letter of Protest that was filed before publication in accordance
with Trademark Rule 2.149(d)(1), 37 C.F.R. § 2.149(d)(1) and TRADEMARK MANUAL OF
EXAMINING PROCEDURE (TMEP) § 1715.02. See September 1, 2023 Letter of Protest
Memorandum. Upon consideration of the grounds for refusal identified in the Letter of
Protest and associated evidence, the Examining Attorney issued the refusals resulting in the
current appeal. See November 9, 2023 Office Action.
3 Registration No. 1950162, issued January 23, 1996; renewed. A typeset mark is the legal
equivalent of a standard character mark. In re Viterra, Inc., 671 F.3d 1358, 1363, n.2 (Fed.
Cir. 2012).
4 Registration No. 5854368, issued September 10, 2019; maintained. “The mark consists of a
wine label design comprised of a rectangular outer border, appearing in the color gold, which

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Applicant filed a notice of appeal and a request for reconsideration. After the
request was denied, the appeal resumed. Both Applicant and the Examining Attorney
have filed briefs.5 For the reasons discussed below, we affirm the refusal to register.
I. Likelihood of Confusion
“The Trademark Act prohibits registration of a mark that ‘so resembles a
registered mark as to be likely, when used on or in connection with the goods … of
the applicant, to cause confusion, mistake, or to deceive.’ 15 U.S.C. § 1052(d) (also
called Section 2(d)).” In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir.
2023). “To determine whether a likelihood of confusion exists under section 2(d), the
Board considers the so-called DuPont factors in its analysis. In re E. I. Du Pont de
Nemours & Co., 476 F.2d 1357, 1361 (CCPA 1973) (reciting thirteen factors to be
considered, referred to as ‘DuPont factors’).” Id.
We consider each DuPont factor for which there is evidence and argument, In re
Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019), but “we focus our analysis on
contains a thinner rectangular inner border, appearing in the color brown, which contains a
drawing of a winery building standing in front of a forest and a field and behind a landscape
featuring a road, stone bridges, a stream and, to the right, grape fields, all appearing in the
color brown, above the trademark ‘ALTAMURA’, appearing in the color brown, above the
geographic designation ‘NAPA VALLEY’, appearing in the color brown.” The colors gold and
brown are claimed as features of the mark.
5 Applicant presents several hyperlinks in its brief to websites cited by the Examining
Attorney during prosecution. Such links are insufficient to make of record the underlying
pages of record, and even if they were not, the evidence would be untimely. See, e.g., In re
Aquitaine Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS 108, at *27 n.21 (Board does
not consider websites for which only links are provided); Trademark Rule 2.142(d)(1), 37
C.F.R. § 2.142(d)(1) (“The record should be complete prior to the filing of an appeal.). Thus,
to the extent Applicant’s arguments pertain to any pages of such websites not already made
of record by the Examining Attorney, they have not been considered.

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those factors we find to be relevant.” ProMark Brands, Inc. v. GFA Brands, Inc., No.
91194974, 2015 TTAB LEXIS 67, at *26-27. “The weight given to each factor depends
on the circumstances of each case.” Charger Ventures, 64 F.4th at 1381. That is,
“[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, 1199 (CCPA 1973).
“In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the [goods].” Monster
Energy Co. v. Lo, No. 91225050, 2023 TTAB LEXIS 14, at *18 (TTAB 2023) (citing
Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (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.”).
We focus our analysis on Registrant’s typeset ALTAMURA mark for “wine” in
Registration No. 1950162. Because we find confusion likely based on the mark in that
registration, we need not consider the likelihood of confusion between the cited
composite mark for the same goods and Applicant’s mark. In re Max Cap. Grp. Ltd.,
No. 77186166, 2010 TTAB LEXIS 1, at *4-5 (“Because the design element in the cited
MAX and design mark arguably contains an additional point of difference with
applicant’s mark, we confine our analysis to the issue of likelihood of confusion
between applicant’s mark and the cited registration for MAX in typed drawing
form.”).

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A. Similarity of the Marks
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 476 F.2d at
1361. “Similarity in any one of these elements may be sufficient to find the marks
confusingly similar.” In re Inn at St. John’s, LLC, No. 87075988, 2018 TTAB LEXIS
170, at *13, aff’d 777 Fed. Appx. 516 (Fed. Cir. 2019) (citing In re Davia, No.
85497617, 2014 TTAB LEXIS 214, at *13).
“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, 1323 (Fed. Cir. 2017)
(quoting Coach Servs. Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir.
2012)). “The focus is on the recollection of the average purchaser, who normally
retains a general rather than a specific impression of trademarks.” In re Box Sols.
Corp., No. 76267086, 2006 TTAB LEXIS 176, at *14.
All elements of the respective marks must be considered. See Viterra, 671 F.3d at
1362 (“[M]arks must be viewed ‘in their entireties,’ and it is improper to dissect a
mark …, including when a mark contains both words and a design.”); In re Nat’l Data
Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985) (stating that “marks must be compared
in their entireties”). However, “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

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Detroit Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018) (quoting Nat’l Data, 753
F.2d at 1058).
Once again, Applicant’s mark is the composite and Registrant’s
mark is ALTAMURA in typed form.
“In the case of marks, such as Applicant’s, consisting of words and a design, the
words are normally accorded greater weight because they are likely to make a greater
impression upon purchasers, to be remembered by them, and to be used by them to
request the goods.” Aquitaine Wine, 2018 TTAB LEXIS 108, at *6, citing Viterra, 671
F.3d at 1366 (“[T]he verbal portion of a word and design mark likely will be the
dominant portion”). We find that to be the case with respect to Applicant’s composite
mark. As the Examining Attorney observes, the word ALATMURA in the mark “is
large, capitalized, and is in a darker shade than the design.”6 It is also pretty much
“dead center”7 and superimposed across the entire body of the lion design in the
background, and is in substantially larger font than the highly descriptive, if not
generic, word DISTILLERIES shown beneath it. As the Examining Attorney puts it,
“applicant’s design element is in a light shade and is placed behind the wording, and
serves more of a background role.”8 We agree with him that a consumer’s “visual
perception will be drawn” toward that “more prominently displayed portion of the
6 8 TTABVYE 6 (Examining Attorney’s Brief).
7 Id.
8 Id. at 5-6.

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mark,”9 ALTAMURA. Consequently, while we acknowledge, as Applicant asserts,
that “the design element of the lion in the subject mark is a distinct and important
feature of [Applicant’s] mark,” we disagree that it is the mark’s dominant feature in
our analysis.10
Additionally, because Registrant’s ALTAMURA mark is registered in typed form,
it may be displayed in any manner, including in the same size, font, and capitalization
as the words in Applicant’s mark, including the identical dominant word
ALTAMURA, thus increasing the likelihood of confusion. See Citigroup Inc. v. Cap.
City Bank Grp., Inc., 637 F.3d 1344, 1349 (Fed. Cir. 2011) (“‘Standard character’ or
‘typed’ registrations are federal mark registrations that make no claim to any
particular font style, color, or size of display and, thus, are not limited to any
particular presentation.”).
“Marks have frequently been found to be similar where one mark incorporates the
entirety of another mark, as is the case here.” TiVo Brands LLC v. Tivoli, LLC, No.
91221632, 2018 TTAB LEXIS 439, at *51-52. See e.g., Charger Ventures, 64 F.4th at
1381-82 (SPARK LIVING and SPARK confusingly similar); In re Mighty Leaf Tea,
601 F.3d. 1342, 1347-48 (Fed. Cir. 2010) (ML and ML MARK LEES confusingly
similar); Coca-Cola Bottling Co. v. Jos. E. Seagram & Sons, Inc., 526 F.2d 556, 557
(CCPA 1975) (BENGAL and BENGAL LANCER confusingly similar); In re West
Point-Pepperell, Inc., 468 F.2d 200, 201 (CCPA 1972) (WEST POINT PEPPERELL
9 8 TTABVUE 6 (Examining Attorney’s Brief0.
10 6 TTABVUE 12 (Applicant’s Brief).

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and WEST POINT confusingly similar).
“Applicant concedes that … the marks do begin with the same term,
‘ALTAMURA,’” but argues that “when combined with the term DISTILLERIES and
the design element, as in the subject mark, the first term takes on a specific and
particular meaning which distinguishes the subject mark ….”11 Applicant points out
that during prosecution, the Examining Attorney required Applicant to amend its
identification of goods to specify that its identified distilled alcohols are “distilled
using wheat originating from Altamura, Italy.”12 According to Applicant, this means
that the combined term “has a clear, distinct and well-known meaning and provides
a distinct commercial impression to consumers, that the product is distilled using
wheat that originates in the unique Altamura area of Italy, and thus has a distinct
and special quality and taste associated with this wheat and products from by
distillation using this wheat,” which “is distinct from the single term ALTAMURA
when displayed alone in connection with wine.”13 Applicant also argues that
Registrant’s mark is “completely unrelated to the geographic region associated with
the goods of the subject mark” and is “in fact, the surname of the company owner …”14
We are unpersuaded by these arguments. As explained above, marks must be
compared as a whole, but this does not preclude giving appropriate weight to
dominant features while giving less weight to elements that are descriptive or
11 6 TTABVUE 9 (Applicant’s Brief).
12 Id. at 10.
13 Id.
14 Id. at 11.

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generic. See Nat’l Data, 753 F.2d at 1058-59, quoted in Quiktrip W., Inc. v. Weigel
Stores, Inc., 984 F.3d 1031, 1035 (Fed. Cir. 2021) (“That a particular feature is
descriptive or generic with respect to the involved goods or services is one commonly
accepted rationale for giving less weight to a portion of a mark....”). DISTILLERIES
is plainly descriptive, if not generic, of Applicant’s distilled alcohol products, as it
directly identifies the nature of the goods or a key feature or them, and its display is
minimized in Applicant’s composite mark. Such highly descriptive or generic
additions are accorded lesser significance in the analysis because they contribute
minimally to source identification. For the reasons discussed above, the dominant
portion of Applicant’s mark remains ALTAMURA, which is identical in appearance,
sound, and potential connotation to the entirety of the registered mark.
That the Examining Attorney required Applicant to amend its identification of
goods to indicate that its distilled alcoholic beverages are made using wheat from
Altamura, Italy does not mean that consumers are aware of this. Consumers
encountering the marks are unaware of the contents of trademark files at the
USPTO, such as specific identifications or goods or services, or any required
amendments thereto. They would also be unaware that “Altamura” is the surname of
Registrant as listed in its registration. See e.g, Nat’l Data, 753 F.2d 1056, 1059 (Fed.
Cir. 1985) (noting that administrative aspects like disclaimers have no effect on
likelihood of confusion, as the public is unaware of them; this principle extends
analogously to amendments in goods identifications and ownership listings); In re
The Clorox Co., 578 F.2d 305, 307 (CCPA 1978) (“[T]he locus of potential confusion is

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[not] in the files of the PTO.”). Cf. Aquitaine Wine, 2018 TTAB LEXIS 108, at *19 (“To
the extent the identification of goods in the application and registration are restricted
to wine from the respective regions, the general purchasing public thus may well be
unaware of the identification of goods in either the application or registration and the
restrictions are not controlling of public perception.”); In re Wada, No. 74657464, 1998
TTAB LEXIS 379, at *13 (public is unaware of disclaimers that “quietly reside” in the
records of the Office).
Applicant provided no evidence to support its contention that the term
ALTAMURA DISTILLIERIES “has a clear, distinct and well-known meaning … to
consumers, that the product is distilled using wheat that originates in the unique
Altamura area of Italy, and thus has a distinct and special quality and taste
associated with this wheat and products from by distillation using this wheat.”
Attorney argument is no substitute for evidence. Cai v. Diamond Hong, 901 F.3d
1367, 1371 (Fed. Cir. 2018) (citing Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d
1276, 1284 (Fed. Cir. 2005)). In any event, ordinary consumers may not know that
Applicant’s goods are made using wheat from Altamura, Italy, particularly if they
aren’t sophisticated drinkers of distilled alcoholic beverages, and may instead view
ALTAMURA as an arbitrary or coined term. When the relevant consumers include
both discerning purchasers and the general public, as is the case with alcoholic
beverages, precedent requires that we base our decision on the least sophisticated
potential purchasers. See Aquitaine Wine, 2018 TTAB LEXIS 108, at *6, citing Stone
Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1325 (Fed. Cir. 2014) (even

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though the seller may primarily target sophisticated potential purchasers, the
analysis must focus on the “least sophisticated potential purchasers” of the goods);
Volkswagenwerk AG v. Rose ‘Vear Enters., Inc., 592 F.2d 1180, 1183 (CCPA 1979)
(comparison of marks “must take into the account the commercial impressions of the
marks on casual purchasers”).
Similarly, “ALTAMURA” as a surname may not be known to many consumers,
and even if recognized as such in Registrant’s mark, those same consumers might
interpret Applicant’s mark as likewise incorporating a surname, given the shared
identical term. Or, they might perceive Registrant’s ALTAMURA mark as an
extension of Applicant’s offerings under a shortened version of Registrant’s mark.
See, e.g., Schieffelin & Co. v. Molson Cos., Ltd., No. 91069312, 1989 TTAB LEXIS 1,
at *12 (TTAB 1989) (“Those consumers who do recognize the differences in the marks
may believe that applicant’s mark is a variation of opposer’s mark that opposer has
adopted for use on a different product.”).
We find Applicant’s and Registrant’s marks similar.
B. Similarity of the Goods and Trade Channels
We turn now to the second DuPont factor, which considers the “similarity or
dissimilarity and nature of the goods” described in the Application and cited
registration,” and the third DuPont factor, which considers “[t]he similarity or
dissimilarity of established, likely-to-continue trade channels.” DuPont, 476 F.2d at
1361.
In comparing the goods, we determine “whether ‘the consuming public may
perceive [them] as related enough to cause confusion about the source or origin of the

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[goods].’” In re St. Helena Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014) (quoting Hewlett-
Packard Co. v. Packard Press Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002)). “[I]t is not
necessary that the [goods] be similar or even competitive to support a finding of a
likelihood of confusion.” Coach Servs., 668 F.3d at 1369 (quoting 7-Eleven, Inc. v.
Wechsler, No. 91117739, 2007 TTAB LEXIS 58, at *28). Likely confusion “can be
found ‘if the respective [goods] are related in some manner and/or if the circumstances
surrounding their marketing are such that they could give rise to the mistaken belief
that they emanate from the same source.’” Id. “[I]t is sufficient for a finding of
likelihood of confusion if relatedness is established for any item encompassed by the
identification of goods within a particular class in the application.” In re Aquamar,
Inc., No. 85861533, 2015 TTAB LEXIS 178, at *9 n.5 (citing Tuxedo Monopoly, Inc. v.
Gen. Mills Fun Grp., 648 F.2d 1335, 1336 (CCPA 1981)).
To show that Applicant’s “vodka, gin, whisky, blended whisky, malt whisky, [or]
wheat absinthe, [each] distilled using wheat originating from Altamura, Italy” are
related to Registrant’s “wine,” the Examining Attorney made of record “marketplace
examples” in the nature of website printouts of third parties that “manufacture,
produce, or provide wines and various spirits of the sort listed by applicant and
markets the goods under the same mark.”15 “[I]t is settled that evidence of third-party
use of the same mark for an applicant’s identified goods and services (or similar goods
or services) on the one hand, and an opposer’s (or registrant’s) identified goods and
services (or similar goods and services) on the other, may establish a relationship
15 8 TTABVUE 11 (Examining Attorney’s Brief).

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between those goods and services.” Ricardo Media Inc. v. Inventive Software, LLC,
No. 91235063, 2019 TTAB LEXIS 283, at *8. See also In re Detroit Athletic Co., 903
F.3d 1297, 1306-07 (Fed. Cir. 2018) (evidence of third parties offering the goods and
services at issue under one mark shows relatedness); Hewlett-Packard, 281 F.3d at
1267 (stating that evidence that even “a single company sells the goods … both
parties, if presented, is relevant to a relatedness analysis”). For example:
• Cedar Ridge (cedarridgedistillery.com) offers wine and whiskey under
its CEDAR RIDGE mark;16
• Fiore Winery (fiorewinery.com) offers wine and whiskey under its
FIORE mark;17
• Flag Hill Distillery & Winery (flaghill.com) offers wine, bourbon and rye
whiskeys under its FLAG HILL mark;18
• Domaine Charbay (charbaywinery.com and charbay.com) offers wine,
whiskey and vodka under its CHARBAY mark;19
• Wollersheim Winery, Distillery and Bistro (wollersheim.com) offers
wine, bourbon, rye, and gin under its WOLLERSHEIM mark;20
• Sweetgrass Farm Winery & Distillery (sweetgrasswinery.com) offers
wine and whiskey under its SWEETGRASS mark;21
• Ransom Spirits (ransomspirits.com and ransomwines.com) offers wine,
gin, and bourbon under its RANSOM mark;22 and
16 November 9, 2023 Office Action at 14-23.
17 Id. at 24-35.
18 Id. at 37-46.
19 March 4, 2024 Final Office Action, at TSDR 64-73.
20 Id. at 75-77.
21 Id. at 79-81.
22 Id. at 98-108;

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• Round Bard Winery Brewery Distillery (roundbarn.com) offers wine,
whiskey, gin, vodka, and bourbon, under its ROUND BARN mark.23
The Examining Attorney also submitted evidence of around nineteen24 third-party
marks that are registered, based on use, for both wine and distilled spirits of the type
listed in the Application. “[U]se-based, third-party registrations, although not
evidence that the marks shown therein are in use or that the public is familiar with
them, nonetheless also have probative value to the extent that they serve to suggest
that the goods listed therein are of a kind which may emanate from a single source
under a single mark.” Joel Gott Wines LLC v. Rehoboth Von Gott Inc., No. 9119765,
2013 TTAB LEXIS 314, at *27-28 (finding third-party registrations covering both
wine and water probative of the relatedness of those beverages). See also In re
Country Oven, Inc., No. 87354443, 2019 TTAB LEXIS 381, at *9-10 (“As a general
proposition, third-party registrations that cover goods … from both the cited
registration and an Applicant’s application are relevant to show that the goods … are
of a type that may emanate from a single source under one mark.”). In relevant part:
• Registration No. 6848644 identifies wine, bourbon, vodka, and
whiskey;25
Registration No. 7207962 identifies wine, spirits, whisky, bourbon, gin,
and vodka;26
23 Id.at 109-121.
24 An additional five registrations cited by the Examining Attorney have not been considered
because they are cancelled or expired. Made in Nature, LLC v. Pharmavite LLC, No.
91223352, 2022 TTAB LEXIS 228, at *31 (“A cancelled or expired registration has no
probative value other than to show that it once issued.”).
25 November 9, 2023 Office Action, at TSDR 52-53.
26 Id. at 54-55.

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• Registration No. 6548847 identifies wine, gin, and vodka;27
• Registration No. 6747967 identifies wine, distilled spirits, whiskey, gin,
and vodka;28
• Registration No. 5458257 identifies wine, whiskey, vodka and gin;29
• Registration No. 7114135 identifies red and white wine, gin, vodka, and
whiskey;30
• Registration No. 7196064 identifies wine, gin, vodka, and whiskey;31
• Registration No. 5803188 identifies wine, whiskey, gin, and vodka;32
• Registration No. 7077267 identifies wine, gin, vodka, and whiskey;33
• Registration No. 6964707 identifies wine, gin, vodka, and whiskey;34
• Registration No. 1557149 identifies wine, whiskey, gin and vodka;35
• Registration No. 6943922 identifies wine, vodka, whiskey, and gin;36
• Registration No. 6412950 identifies wine, gin, vodka, and whiskey;37
• Registration No. 6456731 identifies wine, whiskey, gin, and vodka;38
27 Id. at 58-59.
28 Id. at 60-61.
29 Id. at 64.
30 Id. a 66-67.
31 Id. at 68-69.
32 Id. at 70-71.
33 Id. at 72-73.
34 Id. at 74-75.
35 March 4, 2024 Final Office Action, at TSDR 144-45.
36 Id. at 148-49.
37 Id. at 150.
38 Id. at 152-53.

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• Registration No. 3587909 identifies wine, vodka, gin, and whiskey;39
• Registration No. 5551336 identifies wine, whiskey, gin, and vodka;40
• Registration No. 5106589 identifies wine, gin, vodka, and whiskey;41
• Registration No. 6429237 identifies wine, whiskey, gin and vodka;42 and
• Registration No. 1729721 identifies wine, whiskey, gin, and vodka.43
Th above-discussed third-party uses and registrations are probative of the
relatedness of Applicant and Registrant’s goods because they suggest that the
identified services and goods are of a type that may emanate from the same source
under the same mark.
Applicant argues that “a number of the instances/websites cited [by the
Examining Attorney] do not show sales and marketing of the products of both
applicant’s mark and the marks of the cited Registration[] ….”44 Although not entirely
clear, Applicant appears to suggest that the Examining Attorney must provide use
evidence to be probative, such as proof of sales or something beyond the website pages
that were submitted. But Applicant points to no precedent requiring such
information. As noted in the above-discussed case law, third-party Internet uses and
registrations of the type of record in this case are typical methods of showing the
39 Id. at 154-55.
40 Id. at 160-61.
41 Id. at 162-63.
42 Id. at 164.
43 Id. at 166-67.
44 6 TTABVUE 14 (Applicant’s Brief).

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relatedness of goods or services in ex parte appeals before the Board. See also TMEP
§ 1207.01(a)(iii). Furthermore, as the Examining Attorney notes, “[t]he Court of
Appeals for the Federal Circuit and the [TTAB] have long recognized that USPTO
has limited resources for obtaining evidence when examining applications for
registration; the practicalities of these limited resources are routinely taken into
account.”45 See In re Pacer Tech., 338 F.3d 1348, 1352 (Fed. Cir. 2003). We find the
third-party uses and third-party registrations discussed above sufficient to find that
Applicant’s and Registrants goods are related. Cf. In re Kysela Pere et Fils, No.
77686637, 2011 TTAB LEXIS 70, at *10-11 (finding evidence of approximately twenty
third-party registrations for both wine and beer sufficient to support showing of
relatedness of goods).
Applicant argues that some “instances/websites” cited by the Examining Attorney
“may show products of both applicant’s mark and the marks of the cited Registration
marketed under different brands,” and “[a] further website, gallo.com, sells many
different wines and spirits all under different brands with no mention of the parent
company (Gallo) on any of the individual items displayed on the website.”46 However,
we have not relied on any of those websites in our analysis; the above-discussed
evidence is sufficient for our finding of relatedness.
Applicant also attempts to diminish the weight of the evidence, arguing that
[w]hile a few companies may produce and sell both wines and distilled
beverages, this is not common for most wine producers or distilleries.
The knowledge base for producing wine as opposed to distilling spirits
45 8 TTABVUE 13 (Examining Attorney’s Brief).
46 6 TTABVUE 14 (Applicant’s Brief).

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is vastly different such that production by a single source is very rare.
This distinction is clear from the number of articles cited in the Office
Actions and denial of the Request for Reconsideration which explain the
learning curve the producers of wines and the producers of spirits had
to endure in order to cross over from producing one product to producing
the other. Further, when alcoholic beverages such as wine and distilled
beverages are produced by a single company, the brands are generally
sold under different brand names and the common source of the goods
is not evident to the common consumer.47
But Applicant provides no evidence to support these contentions, and as we
explained above, “[a]ttorney argument is no substitute for evidence.” Cai, 901 F.3d at
1371; Enzo Biochem, 424 F.3d at 1284. Even if it is true that relatively few companies
sell wine together with whiskey, gin and/or vodka, or if they do, they sell them under
different marks, the third-party use evidence in this case shows a significant number
of companies that do offer both types of goods. And that evidence corroborates the
third-party registration evidence showing that both wine and whiskey, gin and/or
vodka often originate from a common source, which “bolsters our finding of
relatedness.” Country Oven, 2019 TTAB LEXIS 381, at *14.
Turning to consideration of trade channels, this factor must be assessed according
to the specific goods identified in the application and cited registration. Octocom Sys.
v. Hous. Comput. Servs., 918 F.2d 937, 942 (Fed. Cir. 1990). In the absence of specific
limitations in the identifications as is the case here, “the goods are presumed to travel
in all normal channels and to all prospective purchasers for the relevant goods.”
47 Id. at 15.

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Coach Servs., 668 F.3d at 1370.48 The relevant class of consumers for both Applicant’s
and Registrant’s goods are the same: members of the general public over the legal
drinking age. The Internet website evidence of record showing the offering of both
Applicant’s and Registrant’s goods online via their websites, as well as in-person at
their respective wineries, distilleries or bistros demonstrates that the respective
goods travel in the same channels of trade and are offered to the same classes of
consumers.
Applicant does not discuss trade channels specifically, but does argue that “in a
store, similarly to a website, the wine is found in a separate section or separate
webpage under different signage from any spirits or other liquor products. This is
true of most, if not all, of the cited websites let alone any site or store that may sell
both wine and spirits.”49 Applicant presents no evidence to support this argument,
but the issue before us is not whether consumers would confuse Applicant’s and
Registrant’s goods, but rather whether there is a likelihood of confusion as to the
source of these goods. See L’Oreal S.A. v. Marcon, No. 91184456, 2012 TTAB LEXIS
77, at *20. That purchasers may be aware of the differences between the goods does
not necessarily preclude the likelihood that they would confuse one trademark for
another, and thereby be misled into believing that the goods have a common origin.
See In re BASF AG, Serial No. unknown, 1975 TTAB LEXIS 202, at *3.
48 The Examining Attorney mistakenly states the presumption of trade channels as being
“the same,” rather than “ordinary or normal”, citing Viterra, 671 F.3d at 1352, but that
presumption only applies when there is identify between the goods.
49 6 TTABVUE 15 (Applicant’s Brief).

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C. Purchasing Conditions
We turn now to the fourth DuPont factor, which considers “[t]he conditions under
which and buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated
purchasing.” DuPont, 476 F.2d at 1361; Stone Lion, 746 F.3d at 1319. “Purchaser
sophistication may tend to minimize likelihood of confusion. Conversely, impulse
purchases of inexpensive items may tend to have the opposite effect.” Palm Bay, 396
F.3d at 1376 (Fed. Cir. 2005) (citation omitted). Applicant contends:
Consumers of wines as well as consumers of distilled spirits are
generally very well educated consumers. These consumers are usually
well read and research the goods they purchase. These consumers
attend tastings of wines and tastings of spirits. They also research their
products as well as consult with other consumers and experts of these
products before purchasing. Consumers that are educated and research
the products are very rarely if ever confused as to the goods they
purchase. These consumers go into establishments or purchase online
with specific knowledge of what they wish to purchase beforehand.
Should these consumers not be sure what to purchase, they usually ask
the salesperson in the establishment who is usually very knowledgeable
regarding the products or chat online with an expert who is also very
knowledgeable of the products for recommendations. Thus, the
likelihood of a consumer of the goods associated with the goods of the
subject mark and the goods of the cited registrations being confused as
to the products they are purchasing is extremely rare.50
Further, according to Applicant:
Consumers purchasing distilled items such as VODKA under the subject
mark at an average price of $35.00 have a much lower attention span
than those who buy wine under the mark of the cited Registrations for
$150.00-$200.00. These goods are at drastically different price points
and marketed for completely different consumers. Consumers for the
goods of the subject mark also have completely different needs from
consumers for the goods of the marks of the cited Registrations. The
consumers of the goods associated with the subject mark would not
confuse the products or brands for goods associated with the marks of
50 Id. at 15-16.

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the cited Registrations, because these different goods are directed to
different target consumers with totally different price ranges.51
Once again, Applicant conflates confusion of the goods with confusion as to source.
L’Oreal S.A. v. Marcon, 2012 TTAB LEXIS 77, at *20. And, as with all of Applicant’s
arguments, these are unsupported as well.52 There is no evidence that consumers of
wine and distilled spirits are “generally very well educated,” “well read,” or “consult
with other consumers and experts of these products before purchasing.” That said,
“even careful or sophisticated purchasers are not immune from source confusion.”
Charger Ventures, 64 F.3d at 1380 (quotation omitted).
Nor is there any evidence of the “average price[s]” of wines verses distilled spirts.
In any event, because the goods identified in the Application and cited registration
are unrestricted as to their price or quality, they are presumed to include wines and
distilled spirits offered at both low and high prices. See, e.g., Aquitaine Wine, 2018
TTAB LEXIS 108, at *29 (“Wine purchasers are not necessarily sophisticated or
careful in making their purchasing decisions, and where, as here, the goods are
identified without any limitations as to trade channels, classes of consumers or
conditions of sale, we must presume that Applicant’s and Registrant’s wine
encompasses inexpensive or moderately-priced wine.”). We also keep in mind that the
standard of care is that of the least sophisticated potential purchaser. Stone Lion, 746
F.3d at 1325, cited in In re FCA US LLC, No. 85650654, 2018 TTAB LEXIS 116, at
*29 (“Board precedent requires our decision to be based on the least sophisticated
51 Id. at 16.
52 Indeed, Applicant presents zero evidence in this appeal.

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potential purchasers.”). There is no evidence that the least sophisticated purchasers
of wines and distilled beverages such as whiskey, vodka or gin will exercise anything
other than ordinary care.
D. Conclusion
We have found that the first, second, third and fourth DuPont factors each weigh
in favor of a finding of likelihood of confusion, and there are no other DuPont factors
that we find relevant or argued here. Accordingly, we conclude that Applicant’s
composite mark for “vodka, gin, whisky, blended whisky, malt whisky,
wheat absinthe, all of the aforementioned distilled using wheat originating from
Altamura, Italy” in Application Serial No. 97600477 is likely to cause confusion with
the Registrant’s standard-character mark ALTAMURA for “wine” in Registration No.
1950162.
Decision: The refusal to register is affirmed.