HC Vineyards LLC.

This Opinion is Not a
Precedent of the TTAB
Mailed: May 4, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
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In re HC Vineyards LLC
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Serial No. 98579854
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HC Vineyards LLC, pro se (by Del Hanson, Owner/Manager of Applicant).
Lisa McCrary, Examining Attorney, Law Office 114,
Nicole Nguyen, Managing Attorney.
_____
Before Larkin, Stanley, and O’Connor,
Administrative Trademark Judges.
Opinion by O’Connor, Administrative Trademark Judge:
HC Vineyards LLC (“Applicant”), appearing pro se, seeks to register the standard-
character mark HORSETHIEF CANYON VINEYARDS (VINEYARDS disclaimed)
on the Supplemental Register for “wine,” in International Class 33.1
1 Application Serial No. 98579854 was filed on June 1, 2024 under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), claiming first use anywhere and in commerce at least
as early as May 25, 2024.
Applicant originally sought registration on the Principal Register, but amended the
Application to seek registration on the Supplemental Register in response to a refusal to
register the mark as primarily geographically descriptive under Section 2(e)(2) of the
Trademark Act, 15 U.S.C. § 1052(e)(2), a ground for refusal that is not at issue in this appeal.

Serial No. 98579854
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The Trademark Examining Attorney has refused registration under Section 2(d)
of the Trademark Act, 15 U.S.C. § 1052(d), due to a likelihood of confusion with the
mark HORSE THIEF HOLLOW, also in standard characters, registered on the
Principal Register for
“Beer,” in International Class 322 and
“Fast casual restaurants featuring sandwiches and
beverages; Providing food and beverages; Restaurant and
bar services; Restaurant and bar services, including
restaurant carryout services; Restaurant services
featuring sandwiches; Restaurant services, including sit-
down service of food and take-out restaurant services;
Restaurant services, namely, providing of food and
beverages for consumption on and off the premises;
Taproom services featuring Beer Brewed on Premises;
Taproom services featuring Beer Cocktails; Taproom
services featuring Craft Beer; Providing food and drink in
restaurants and bars; Providing information in the field of
recipes for alcoholic beverages and cocktails via a website;
Providing information in the field of recipes via a website,”
in International Class 43.3
The appeal has been fully briefed and is ready for decision.4 We affirm the refusal
to register.
Citations to the prosecution file are to entries in the USPTO’s Trademark Status & Document
Retrieval (“TSDR”) system in .pdf format. Citations to the appeal record are to TTABVUE,
the Board’s online docketing system, also in .pdf format.
2 Registration No. 7489122 issued on August 27, 2024 (the “’122 Registration”).
3 Registration No. 7489124 also issued on August 27, 2024 to the same owner (together with
the ’122 Registration, the “Cited Registrations”).
4 Applicant twice sought reconsideration. The first time was after the Examining Attorney
made final the refusals based on geographic descriptiveness and likelihood of confusion in
view of the Cited Registrations and another registration owned by the same registrant. See
April 14, 2025 Request for Reconsideration. The Examining Attorney withdrew the Section
2(d) refusal based on the other registration, but otherwise maintained the refusal. See May
15, 2025 Denial of Request for Reconsideration. Applicant then amended its application to
seek registration on the Supplemental Register, obviating the Section 2(e)(2) refusal but not
the Section 2(d) refusal. Applicant also filed this appeal and sought reconsideration again

Serial No. 98579854
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Evidentiary Issue
Before turning to the merits of the appeal, we address an evidentiary issue.
Applicant includes internet screenshots in its brief, to which the Examining Attorney
objects as being provided for the first time on appeal.5 “The record in the application
should be complete prior to the filing of an appeal” and “[e]vidence should not be filed
with the Board after the filing of a notice of appeal.” In re Weiss, No. 88621608, 2024
TTAB LEXIS 277, at *4 (quoting Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d)).
Inasmuch as the screenshots on page 6 of Applicant’s brief were not provided during
prosecution, the objection is sustained as to those screenshots, and we do not consider
them. See In re Inn at St. John’s, LLC, No. 87075988, 2018 TTAB LEXIS 170, at *4-
5, aff’d per curiam, 777 F. App’x 516 (Fed. Cir. 2019). The screenshots on page 9 of
Applicant’s brief, however, contain the same photos as those contained in screenshots
made of record by Applicant during prosecution.6 We overrule the objection to the
screenshots on page 9 of Applicant’s brief to the extent they reflect content made of
record during prosecution, and we consider the photos in those screenshots for
whatever they are worth.
with respect to the likelihood of confusion refusal. See May 19, 2025 Request for
Reconsideration. The appeal was suspended pending Applicant’s second reconsideration
request and was resumed when that request was denied. See June 19, 2025 Denial of Request
for Reconsideration; 5 TTABVUE.
5 See 8 TTABVUE 2.
6 The Examining Attorney’s brief appears to mistakenly identify these screenshots as
appearing at page 8 of Applicant’s brief. The page numbered 8 in Applicant’s brief, 6
TTABVUE 9, does not contain any screenshots, but the following page does, and as noted by
the Examining Attorney, those screenshots are similar to the ones found in Applicant’s
Response to the Nonfinal Office Action. Compare 6 TTABVUE 10 with January 28, 2025
Response to Nonfinal Office Action, TSDR 51, 55.

Serial No. 98579854
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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 or
services of the applicant, to cause confusion, mistake, or to deceive.” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our determination
of the issue of likelihood of confusion is based on analysis of all of the probative facts
in evidence that are relevant to the factors set forth in In re E.I. DuPont de Nemours
& Co., 476 F.2d 1357, 1361 (CCPA 1973) (the “DuPont factors”), cited in B&B
Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 145 (2015). We consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
Varying weight may be assigned to each DuPont factor depending on the evidence
presented. See Charger Ventures, 64 F.4th at 1381 (“In any given case, different
DuPont factors may play a dominant role and some factors may not be relevant to the
analysis.”) (citation omitted). In determining likelihood of confusion, two key
considerations are the similarity or dissimilarity of the marks and the similarity or
dissimilarity of the goods or services. In re i.am.symbolic, llc, 866 F.3d 1315, 1322
(Fed. Cir. 2017) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1165
(Fed. Cir. 2002)); 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.”).

Serial No. 98579854
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A. The Goods
Under the second DuPont factor, we consider “[t]he similarity or dissimilarity and
nature of the goods or services as described in an application or registration.” DuPont,
476 F.2d at 1361. Our determination is based on the identification of goods in the
Application and Cited Registrations. See, e.g., In re Detroit Athletic Co., 903 F.3d
1297, 1308 (Fed. Cir. 2018).
“[I]t is not necessary that the products of the parties be similar or even competitive
to support a finding of likelihood of confusion.” Coach Servs., Inc. v. Triumph
Learning LLC, 668 F.3d 1356, 1369 (Fed. Cir. 2012) (quoting 7-Eleven, Inc. v.
Wechsler, No. 91117739, 2007 TTAB LEXIS 58, at *28). A likelihood of confusion can
be found if the 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. See also Recot, Inc. v. Becton, 214 F.3d
1322, 1329 (Fed. Cir. 2000) (“[E]ven if the goods in question are different from, and
thus not related to, one another in kind, the same goods can be related in the mind of
the consuming public as to the origin of the goods.”).
We begin by comparing the goods identified in the Application, “wine,” to the goods
identified in the ’122 Registration, “beer.” If we find a likelihood of confusion between
the marks as to these goods, we need not find a likelihood of confusion between the
marks as to the services identified in the other Cited Registration for the identical
standard-character mark HORSE THIEF HOLLOW in order to affirm the refusal to
register. Cf. In re Max Cap. Grp. Ltd., No. 77186166, 2010 TTAB LEXIS 1, at *20.

Serial No. 98579854
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Although both wine and beer are alcoholic beverages, “[t]here is no per se rule that
holds that all alcoholic beverages are related.” In re White Rock Distilleries Inc., No.
77093221, 2009 TTAB LEXIS 601, at *8-9 (citing G. H. Mumm & Cie v. Desnoes &
Geddes Ltd., 917 F.2d 1292 (Fed. Cir. 1990) and Nat’l Distillers and Chem. Corp. v.
William Grant & Sons, Inc., 505 F.2d 719 (CCPA 1974)). We therefore must decide
this issue on the record before us.
The Examining Attorney provided the following evidence in support of relatedness
of wine and beer:
Entities offering the goods under the same mark or variations thereof
• Valley Vineyards Winery Brewery
• Fenton Winery & Brewery / FWB
• Wagner Vineyards / Wagner Valley Brewing Co.
• Machinaw Trail Winery & Brewery7
• Barrel Oak Winery & Brewery
• Lake Wedowee Winery and Brewery
• Bear Creek Winery & Brewery
• Newport Vineyards
• Schilling Bridge Winery / Schilling Bridge Brewing Company8
• Hudsonville Brewing Co. Pike 51 / Hudsonville Winery
• Round Barn Winery Brewery Distillery
• The Brewery at Hershey / The Vineyard at Hershey
• Von Jakob Winery & Brewery9
• Mountain View Vineyard / Mountain View Brewery
• Three Fox Vineyards & Brewery
7 January 13, 2025 Nonfinal Office Action, TSDR 66-92 (screenshots from
valleyvineyards.com, fentonbrewery.com, wagnervineyards.com and wagnerbrewing.com),
113-33 (screenshots from mackinawtrailwinery.com).
8 April 8, 2025 Final Office Action 27-73 (screenshots from barreloak.com,
lakewedoweewinery.com, bearcreekwinecompany.com and newportvineyards.com), 108-16
(screenshots from schillingbridgewinery.com).
9 May 15, 2025 Denial of Request for Reconsideration, TSDR 5-14 (screenshots from
hudsonvillewinery.com), 38-61 (screenshots from roundbarn.com, vineyardathershey.com,
and vonjakobvineyard.com).

Serial No. 98579854
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• Old House10
Use-based registrations owned by third parties covering both beer and wine
• REMLINGER BREWING, Reg. No. 7164772
• BEAT CULTURE, Reg. No. 5662013
• TANGLED ROOTS BREWING COMPANY, Reg. No. 6583932
• MASTRY’S, Reg. No. 7677453
• HAZY BARBEQUE, Reg. No. 6670132
• RYE KNOT, Reg. No. 6795441
• BOX OFFICE BREWERY, Reg. No. 600858011
• SPRINGGATE, Reg. No. 5973378
• SHOTS FIRED, Reg. No. 7263554
• MAZALOT and design, Reg. No. 5957365
• PACKSADDLE, Reg. No. 7367703
• GROWN FOLKS, Reg. No. 7638855
• NORTEX, Reg. No. 7345766
• LAKE LIFE, Reg. No. 5603137
• FIVE SHORES, Reg. No. 5891000
• OLFACTORY, Reg. No. 6994985
• MURA, Reg. No. 6694636
• CHOICE, Reg. No. 7283593
• CHIEF O’NEILL’S, Reg. No. 7626818
• CLASS 100, Reg. No. 703238012
The Examining Attorney also made of record an article in Wine Enthusiast titled
“‘Give ‘Em What They Want’: These Craft Breweries Make Wine Now, Too” which
discusses several breweries that have entered the wine space as well as a winery that
plans to expand to open a brewery on the premises.13
In response to this evidence, Applicant argues
10 June 19, 2025 Denial of Request for Reconsideration, TSDR 13-36 (screenshots from
mountainviewvineyard.com, threefoxvineyards.com and oldhousetoday.com).
11 April 8, 2025 Final Office Action, TSDR 76-89 (copies of Registration Nos. 7164772,
5662013, 6583932, 7677453, 6670132, 6795441, and 6008580).
12 May 15, 2025 Denial of Request for Reconsideration, TSDR 170-97 (copies of Registration
Nos. 5973378, 7263554, 5957365, 7367703, 7638855, 7345766, 5603137, 5891000, 6994985,
6694636, 7283593, 7626818 and 7032380).
13 April 8, 2025 Final Office Action, TSDR 13-16.

Serial No. 98579854
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The Examining Attorney relies on a small number of third-
party registrations where a single entity produces both
beer and wine. However, these few examples are not
representative of the industry standard. It is
unusual for a winery to brew its own beer, just as it
is even more rare for a brewery or restaurant/bar to
produce and brand its own wine. The vast majority of
breweries and wineries operate in separate markets, using
distinct supply chains, licensing, and marketing
strategies.14
These arguments are not persuasive. At the outset, Applicant did not provide any
supporting evidence for its factual contentions. See Cai v. Diamond Hong, Inc., 901
F.3d 1367, 1371 (Fed. Cir. 2018) (assertions of fact in briefs are “not evidence under
any of the relevant rules”) (citing Enzo Biochem, Inc. v. Gen-Probe Inc., 424 F.3d 1276,
1284 (Fed. Cir. 2005)). In addition, Applicant mischaracterizes the Examining
Attorney’s evidence. The Examining Attorney provided a number of third-party
registrations (20 in total) for the same mark covering both wine and beer. These
registrations that cover goods identified in both the Application and the ’122
Registration “are relevant to show that the goods [ ] are of a type that may emanate
from a single source under one mark.” In re Country Oven, Inc., No. 87354443, 2019
TTAB LEXIS 381, at *9-10 (citing, inter alia, Detroit Athletic, 903 F.3d at 1306); see
also In re Albert Trostel & Sons Co., No. 74186695, 1993 TTAB LEXIS 36, at *7
(“Although third-party registrations are not evidence that the marks shown therein
are in commercial use, or that the public is familiar with them, nevertheless third-
party registrations which individually cover a number of different items and which
14 6 TTABVUE 5 (emphasis supplied by Applicant).

Serial No. 98579854
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are based on use in commerce may have some probative value to the extent that they
serve to suggest that the listed goods and/or services are of a type which may emanate
from a single source.”).
Applicant seeks to diminish the marketplace evidence provided by the Examining
Attorney as reflecting “isolated or destination-based business models rather than the
ordinary manner in which wine and beer are encountered in commerce,”15 again
without supporting evidence. We find that the evidence of record, screenshots from
the websites of 16 third parties offering both wine and beer under the same mark or
variations of the same mark, supports a finding that consumers encounter wine and
beer offered by the same parties, under the same or similar marks, and that the goods
are related. See, e.g., Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1267
(Fed. Cir. 2002) (evidence that “a single company sells the goods and services of both
parties, if presented, is relevant to a relatedness analysis”); In re C.H. Hanson Co.,
No. 77983232, 2015 TTAB LEXIS 357, at *17 (six websites offering both goods under
the same mark, coupled with five marks registered for the goods, supported
relatedness).16
The second DuPont factor supports a likelihood of confusion.
15 9 TTABVUE 3.
16 Applicant also argues that “there is no evidence that Horse Thief Hollow offers wine under
its mark or has any intent to do so” such that “[g]ranting them de facto rights in Class 033
based solely on speculative overlap would improperly expand their trademark protection to
goods they neither produce nor sell….” 6 TTABVUE 5. But this is counter to our precedent.
“There is no requirement that either applicant or registrant also be the source of the other’s
goods before the goods can be held to be related.” In re G.B.I. Tile & Stone, Inc., No. 77369073,
2009 TTAB LEXIS 647, at *16.

Serial No. 98579854
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B. The Channels of Trade and Classes of Consumers
We next consider the third DuPont factor, “[t]he similarity or dissimilarity of
established, likely-to-continue trade channels.” DuPont, 476 F.2d at 1361. As under
the second factor, our determination is based on the identification of goods in the
Application and Cited Registrations. Because there are no limitations in the
identifications in either the Application or the ’122 Registration, we must presume
Applicant’s identified “wine” and Registrant’s “beer” travel through all usual trade
channels and are offered and sold to all of the usual purchasers of such goods. See,
e.g., Packard Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1361 (Fed. Cir. 2000)
(“When the registration does not contain limitations describing a particular channel
of trade or class of customer, the goods or services are assumed to travel in all normal
channels of trade.”); Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., No. 91194148,
2015 TTAB LEXIS 260, at *32 (“[A]bsent any explicit restriction in the application or
registration, we must presume the parties’ identified goods to travel through all
normal channels of trade for goods of the type identified, and we must consider them
to be offered and sold to all of the usual customers for such goods.”) (citing inter alia
Coach Servs., 668 F.3d at 1370).
The third-party website evidence discussed above shows that the goods of both
Applicant and Registrant are offered in at least one common channel of trade,
combination wineries and breweries. Cf. In re Toshiba Med. Sys. Corp., No. 79046106,
2009 TTAB LEXIS 447, at *21 (website evidence showed same or overlapping
channels of trade and classes of customers). Other evidence in the record supports a

Serial No. 98579854
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finding that at least to this extent consumers of wine and beer overlap. The Wine
Enthusiast article discusses a trend of beer producers also making wine, and vice
versa, stating that “[t]asting room customers want choice. Not everyone drinks just
beer or wine or spirits, and business owners want customers to feel comfortable.
Offering a variety of products, especially when house-made, keeps people around
longer and contributes more to the bottom line.”17 Consistent with the Wine
Enthusiast article, the Lake Wedowee Winery and Brewery website, for example,
states “[w]e are excited to announce that we are now brewing and serving our own
Lake Wedowee Winery and Brewery beer! Wine will always be our passion and main
product but many of you have asked for some variety and this is for you!”18
The evidence supports a finding that the trade channels and classes of consumers
overlap to at least some degree. The third DuPont factor supports a likelihood of
confusion.
C. The Marks
The first DuPont factor compares the marks “in their entireties as to appearance,
sound, connotation, and commercial impression.” Detroit Athletic, 903 F.3d at 1303
(quoting DuPont, 476 F.3d at 1361). “Similarity in any one of these elements may be
sufficient to find the marks confusingly similar.” Inn at St. John’s, 2018 TTAB LEXIS
170, at *13.
17 April 8, 2025 Final Office Action, TSDR 14.
18 Id., TSDR 43.

Serial No. 98579854
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The proper test regarding similarity “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, 901 F.3d at 1373 (internal
quotation marks and citation omitted). Our analysis cannot be predicated on
dissecting the marks into their various components; that is, our finding must be based
on the entire marks, not just part of the marks. In re Nat’l Data Corp., 753 F.2d 1056,
1058 (Fed. Cir. 1985); see also In re Electrolyte Labs. Inc., 929 F.2d 645, 647 (Fed. Cir.
1990) (“No element of a mark is ignored simply because it is less dominant, or would
not have trademark significance if used alone.”). Nonetheless, “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.” Detroit Athletic, 903 F.3d at 1305 (quoting Nat’l Data, 753
F.2d at 1058). “The focus is on the recollection of the average purchaser, who normally
retains a general rather than a specific impression of trademarks.” In re St. Julian
Wine Co., No. 87834973, 2020 TTAB LEXIS 196, at *13.
The Examining Attorney argues that the marks HORSETHIEF CANYON
VINEYARDS and HORSE THIEF HOLLOW are similar in appearance and sound
due to the use of nearly identical initial, dominant words.19 Applicant argues that the
Examining Attorney failed to consider the marks in their entireties, placing too much
19 8 TTABVUE 4-5.

Serial No. 98579854
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emphasis on the initial terms HORSETHIEF/HORSE THIEF while improperly
discounting the remainder of Applicant’s mark and the cited mark.20
Although the marks each have some different words, we find that, visually and
phonetically, HORSETHIEF CANYON VINEYARDS and HORSE THIEF HOLLOW
are similar due to the nearly identical first word(s) HORSETHIEF and HORSE
THIEF. The identity of the marks’ initial words “is particularly significant because
consumers typically notice those words first.” Detroit Athletic, 903 F.3d at 1303. See
also Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396
F.3d 1369, 1372 (Fed. Cir. 2005) (finding similarity between VEUVE ROYALE and
two VEUVE CLICQUOT marks in part because “VEUVE nevertheless remains a
‘prominent feature’ as 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, 876 (Fed
Cir. 1992) (finding similarity between CENTURY 21 and CENTURY LIFE OF
AMERICA in part because “consumers must first notice th[e] identical lead word”).
The absence of a space between HORSE and THIEF in Applicant’s mark does not
detract from the marks’ similarity because the terms remain very similar in
appearance and identical in sound. See, e.g., Chutter, Inc. v. Great Mgmt. Grp., LLC,
No. 91223018, 2021 TTAB LEXIS 365, at *48 (“The presence or absence of a space
between two terms is usually an inconsequential difference that even if noticed by
consumers would not serve to distinguish these marks.”), rev’d on other grounds, 90
F.4th 1333 (Fed. Cir. 2024); see also Seaguard Corp. v. Seaward Int’l, Inc., No.
20 6 TTABVUE 4; 9 TTABVUE 2-3.

Serial No. 98579854
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92013589, 1984 TTAB LEXIS 75, at *10-11 (SEA GUARD and SEAGUARD are
“essentially identical”).
The Examining Attorney argues that the words CANYON and HOLLOW, though
different in appearance and sound, evoke “the same idea of a valley-like place or
area.”21 According to the Examining Attorney, “[b]oth terms describe a topographical
feature with similar characteristics, and when used in combination with the identical
wording HORSETHIEF/HORSE THIEF present a mental image that would be
confusing to consumers (namely that of a hidden area where a thief of horses might
take refuge).”22 The Examining Attorney also argues that VINEYARDS does not
distinguish Applicant’s mark from the cited mark because the term is generic as
evidenced by Applicant’s disclaimer and dictionary evidence defining VINEYARDS
as “an area of land where grape vines are grown in order to produce wine.”23
According to Applicant, the words after HORSETHIEF/HORSE THIEF in the
marks HORSETHIEF CANYON VINEYARDS and HORSE THIEF HOLLOW not
only create visual and phonetic distinctions but most importantly give the marks
different commercial impressions. In particular, Applicant argues that its mark
“invok[es] a specific geographic location and winemaking identity”24 as seen in the
21 8 TTABVUE 5; see also January 13, 2025 Nonfinal Office Action, TSDR at 4, 17 (MERRIAM-
WEBSTER DICTIONARY defining “canyon” as “a deep narrow valley with steep sides and often
with a stream flowing through it”), 23 (THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE defining “hollow” to include “[a] small valley between hills or
mountains”).
22 8 TTABVUE 5.
23 Id. at 6 (citing COLLINS DICTIONARY, January 13, 2025 Nonfinal Office Action, TSDR 60).
24 6 TTABVUE 4; see also 9 TTABVUE 3.

Serial No. 98579854
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Examining Attorney’s evidence showing that Applicant is located near the Horsethief
Canyon trailhead in California.25 Applicant argues that the cited mark conveys a
rustic, hospitality-oriented impression deriving from “the name of a specific historical
feature at its location—a hollow characterized by dense woods and elevated terrain
that no longer exists—and functions today as the proper name of a hospitality
venue.”26
We do not find that consumers would perceive such subtle different impressions
from the two marks when used with their respective goods. The “marks must be
considered ... in light of the fallibility of memory and not on the basis of side-by-side
comparison.” In re St. Helena Hosp., 774 F.3d 747, 751 (Fed. Cir. 2014) (internal
quotation marks and citation omitted). The words HORSETHIEF/HORSE THIEF
have no inherent significance with respect to wine or beer, and are memorable. As
Applicant conceded during prosecution, “both marks share the term ‘HORSETHIEF,’
[which] is suggestive or descriptive of a rustic or outlaw theme.”27 Even though the
marks pair HORSETHIEF/HORSE THIEF with the non-identical topographical
terms CANYON and HOLLOW, respectively, the overall marks engender similar
impressions because they both convey the idea of a depressed area of land where
25 January 13, 2025 Nonfinal Office Action, TSDR 25-58 (printouts from AllTrails and other
websites regarding Horsethief Canyon Trail located near Alpine, California).
26 9 TTABVUE 3; see January 28, 2025 Response to Nonfinal Office Action, TSDR 9, 45-47
(section of Registrant’s website titled “Behind the Name” explains that in the 1850’s the area
was known as “Horse Thief Hollow” because bandits hid there with horses stolen from
Missouri and brought to market in Chicago).
27 April 14, 2025 Request for Reconsideration, TSDR 4 (emphasis omitted).

Serial No. 98579854
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thieves hide their stolen horses.28 See, e.g., Procter & Gamble Co. v. Conway, 419 F.2d
1332, 1336 (CCPA 1970) (aural and visual dissimilarity between “stain” and “clean”
in MISTER STAIN and MR. CLEAN was not controlling because a designation may
be likely to cause confusion where it conveys “the same idea, or stimulates the same
mental reaction, or in the ultimate has the same meaning”); Ralston Purina Co. v.
Old Ranchers Canning Co., 1978 TTAB LEXIS 31, at *8-9 (TUNA O’THE FARM for
ready-to-eat boned chicken considered a “colorable imitation” of CHICKEN OF THE
SEA for canned tuna fish because both conveyed same incongruous connotation).
Although Applicant’s mark has the additional word VINEYARDS, we do not find
that this detracts from the similarity of the marks when considered in their entireties.
Applicant disclaimed VINEYARDS as generic, and it is reasonable to accord
VINEYARDS less source-indicating significance than the words HORSETHIEF
CANYON. Disclaimed matter is not removed from the mark and must be considered
when comparing the marks in their entireties, but “[t]hat 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.” Nat’l Data, 753 F.2d
at 1058. See also In re Dixie Rests. Inc., 105 F.3d 1405, 1407 (Fed. Cir. 1997) (Board
properly found that DELTA was dominant in THE DELTA CAFE and design, which
disclaimed the generic word CAFE); In re Binion, No. 76590702, 2009 TTAB LEXIS
28 See April 8, 2025 Final Office Action, TSDR 126 (article from San Diego Reader states that
Horsethief Canyon has a trail “that was once used by thieves to corral their stolen horses”);
January 28, 2025 Response to Nonfinal Office Action, TSDR 47 (Registrant’s website
explaining that horse thieves used to hide stolen horses in the area once known as Horse
Thief Hollow).

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701, at *7-8 (concluding that confusion was likely between BINION’S for “hotel and
bar services” and BINION’S ROADHOUSE for “restaurant services” where
descriptive word ROADHOUSE received less weight than BINION’S when
comparing the marks as a whole).
“[S]imilarity is not a binary factor but is a matter of degree,” St. Helena Hosp., 774
F.3d at 752, and may be found even where there are some differences in the marks.
See, e.g., Coca-Cola Bottling Co. v. Joseph E. Seagram & Sons, Inc., 526 F.2d 556, 557
(CCPA 1975) (BENGAL and BENGAL LANCER, considered as a whole, were
substantially similar). Here, the marks HORSETHIEF CANYON VINEYARDS and
HORSE THIEF HOLLOW overall are very similar due to their nearly identical
initial, dominant terms and second terms having similar topographical significance.
The generic word VINEYARDS has less commercial import and does not render the
marks dissimilar. See In re Chatam Int’l, 380 F.3d 1340, 1342-43 (affirming
conclusion that JOSE GASPAR GOLD for tequila and GASPAR’S ALE for beer and
ale were confusingly similar; Board properly accorded generic term ALE less weight
when comparing the marks).
The first DuPont factor also weighs in favor of a likelihood of confusion.
D. Purchasing Conditions and Sophistication of Consumers
Applicant argues that the respective consumers are sophisticated and exercise
care in purchasing, such that the likelihood of confusion is reduced.29 These
arguments implicate the fourth DuPont factor, “[t]he conditions under which and
29 6 TTABVUE 8.

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buyers to whom sales are made, i.e. ‘impulse’ vs. careful, sophisticated purchasing.”
DuPont, 476 F.2d at 1361. “Purchaser sophistication may tend to minimize likelihood
of confusion. Conversely, impulse purchases of inexpensive items may tend to have
the opposite effect.” Palm Bay Imps., 396 F.3d at 1376.
Applicant again does not point to evidence, but only makes unsupported
contentions. We do not find that use of VINEYARDS in Applicant’s mark conveys
qualities that “resonate with discerning wine buyers”30 to the exclusion of other
consumers. There is no evidence that Applicant and Registrant “offer specialty
products within their respective industries” that “attract significantly more
knowledgeable and selective consumers.”31 Moreover, neither identification contains
any limitations on the quality or price of the goods, which must therefore be presumed
to include goods of all quality levels and price points. See In re Aquitaine Wine USA,
LLC, No. 86928469, 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.”). The record evidence
shows beer offered at moderate prices, and wine offered at a range that is somewhat
30 Id. Indeed, the record includes several entities with “vineyard” or “vineyards” in their trade
names that also sell beer, such as Valley Vineyards Winery Brewery, Newport Vineyards and
Three Fox Vineyards & Brewery.
Applicant’s related argument about the type of consumer that comes to a winery, id., is not
relevant because the Application simply identifies “wine,” with no limitation on the channels
of trade for the goods.
31 Id.

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higher than beer but still includes moderately priced offerings,32 such that the goods
are likely to appeal to average consumers. Our decision must “be based on the least
sophisticated potential purchasers.” Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP,
746 F.3d 1317, 1325 (Fed. Cir. 2014) (internal quotation marks and citation omitted).
Here, the least sophisticated purchasers of beer and wine are unlikely to be
particularly discerning or exercise a high degree of care in making their purchase
decisions. And even if some consumers of the goods are more sophisticated or
discerning than others, even “careful or sophisticated consumers are not immune
from source confusion.” Charger Ventures, 64 F.4th at 1383.
The fourth DuPont factor is neutral.
E. Other Factors
Applicant argues that the involved marks have coexisted through use and/or
registration with apparel goods “without incident for over two years” as reflected by
its ownership of a prior registration for HORSETHIEF CANYON VINEYARDS in
Class 25 and screenshots from Registrant’s website offering HORSE THIEF
HOLLOW-branded shirts and hats.33 From this, Applicant argues that the DuPont
factors of concurrent use without evidence of actual confusion (eighth factor) and
32 See, e.g., January 13, 2025 Nonfinal Office Action, TSDR 66-69 (wine bottles priced between
$14 and $40); 87 (beer flights starting at $8 and wine flights starting at $9), 120-33 (wine
bottles priced between $15 and $100); June 19, 2025 Denial of Request for Reconsideration,
TSDR 14, 19 (beer growler sale priced at $8.00 and wine starting at $17.99 per bottle).
33 6 TTABVUE 8-10 (referencing U.S. Reg. No. 90319378, issued February 15, 2022, and
showing images from Registrant’s website). Applicant did not provide a copy of this
registration, so we again have no evidence, only unsupported factual contentions.

Serial No. 98579854
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market interface between applicant and the prior mark owner (tenth factor) support
a conclusion that there is no likelihood of confusion.
These arguments fail for multiple reasons. There is no evidence regarding the
extent of any purported concurrent use in the marketplace for the apparel goods
without confusion. “Uncorroborated statements of no known instances of actual
confusion ... are of little evidentiary value,” especially in ex parte examination, where
the owner of the cited registration is not a party. In re Majestic Distilling Co., 315
F.3d 1311, 1317 (Fed. Cir. 2003); see also In re Embiid, No. 88202890, 2021 TTAB
LEXIS 168, at *53-54. And even if there were, this would not show that confusion is
unlikely for the involved goods, wine and beer. Further, “a showing of actual
confusion is not necessary to establish a likelihood of confusion.” i.am.symbolic, 866
F.3d at 1322 (quoting Herbko, 308 F.3d at 1164-65). “[T]he relevant test is likelihood
of confusion, not actual confusion.” Detroit Athletic, 903 F.3d at 1309 (italics in
original shown here in bold). The eighth and tenth DuPont factors are neutral.
Applicant argues that because the asserted coexistence of these marks without
apparent objection reflects a lack of marketplace confusion, the “USPTO should avoid
creating conflict where none exists.”34 This appears to allude to the twelfth DuPont
factor, the “extent of potential confusion, i.e., whether de minimis or substantial,”
DuPont, 476 F.2d at 1361, and possibly the thirteenth factor, “[a]ny other established
fact probative of the effect of use.” Id. Applicant’s arguments “essentially repeat
arguments under the other DuPont factors, and have been duly considered.” Heil Co.,
34 6 TTABVUE 11.

Serial No. 98579854
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2024 TTAB LEXIS 494, at *94. The twelfth and thirteenth DuPont factors are also
neutral.
As to Applicant’s argument that the USPTO should “avoid unreasonable or
arbitrary action,”35 the Examining Attorney’s refusal cited statutory authority,
provided supporting evidence and articulated the reasons for the refusal, which we
find to be well-taken. See TRADEMARK MANUAL OF EXAMINING PROCEDURE § 701 et
seq. (Nov. 2025) (citing 15 U.S.C. § 1062). Applicant’s disagreement with the refusal
to register does not render it arbitrary or capricious. See Japanese Found. for Cancer
Rsch. v. Lee, 773 F.3d 1300, 1304 (Fed. Circ. 2014) (“[A]n agency acts arbitrarily or
capriciously only if the decision was not based on the relevant factors or it fails to
‘examine the relevant data and articulate a satisfactory explanation for its action
including a rational connection between the facts found and the choice made.’”)
(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29
(1983)).36
35 Id.
36 During prosecution Applicant made other arguments that are not addressed in its appeal
briefs. See, e.g., May 19, 2025 Request for Reconsideration, TSDR 12 (conceptual weakness
of cited mark); 13 (coexistence of similar wine and beer marks owned by different parties).
We deem these arguments waived or forfeited due to Applicant’s failure to pursue them on
appeal. See, e.g., In re Princeton Equity Grp. LLC, No. 97397212, 2025 TTAB LEXIS 242, at
*8; In re Katch, LLC, No. 86301765, 2019 TTAB LEXIS 154, at *3-4. See also TRADEMARK
TRIAL AND APPEAL BOARD MANUAL OF PROCEDURE § 1203.02(g) (2025) (“If an applicant, in
its appeal brief, does not assert an argument made during prosecution, it may be deemed
waived by the Board.”).

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Conclusion—Summarizing the DuPont Factors
The final step in analyzing likelihood of confusion is to assess our findings under
the DuPont factors and determine whether confusion is likely. See Charger Ventures,
64 F.4th at 1384. Applicant’s wine is related to the beer identified in the ’122
Registration, and there is evidence of an overlapping channel of trade and class of
consumers, with the second and third DuPont factors weighing in favor of likelihood
of confusion. The marks HORSETHIEF CANYON VINEYARDS and HORSE THIEF
HOLLOW are very similar due to their dominant initial terms and additional words
with similar topographical significance, with the generic word VINEYARDS unlikely
to alter the overall commercial impression of Applicant’s mark on consumers. The
first DuPont factor therefore weighs somewhat heavily in favor of likelihood of
confusion. The fourth, eighth, tenth, twelfth and thirteenth DuPont factors are
neutral in our analysis, and no factor weighs against likelihood of confusion.
We thus conclude that confusion is likely between Applicant’s mark and the mark
in the ’122 Registration, when used with their respective identified goods.
Decision:
The refusal to register Applicant’s mark under Trademark Act Section 2(d) is
affirmed.