Destiladora del Valle de Tequila SA de CV

Mailed: May 12, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Destiladora del Valle de Tequila SA de CV
————
Serial No. 98588895
————
Francis J. Ciaramella of Francis John Ciaramella, PLLC,
for Destiladora del Valle de Tequila SA de CV.
Esther Queen, Trademark Examining Attorney, Law Office 111,
Chris Doninger, Managing Attorney.
————
Before Wellington, Lebow, and Lavache,
Administrative Trademark Judges.
Opinion by Lavache, Administrative Trademark Judge:
Destiladora del Valle de Tequila SA de CV (“Applicant”) seeks registration on the
Principal Register of the mark AI in standard characters for “Distilled agave liquor,”
in International Class 33.1
1 Application Serial No. 98588895, filed June 6, 2024, based on an allegation of a bona fide
intention to use the mark in commerce under Trademark Act Section 1(b), 15 U.S.C.
§ 1051(b).
The TTABVUE and Trademark Status and Document Retrieval (TSDR) citations in this
opinion refer respectively to entries in the Board’s electronic docket and the electronic
application file. For TTABVUE citations, the number preceding the TTABVUE designation
is the docket entry number and any numbers following indicate the relevant page numbers
within the docket entry.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 98588895
2
The Trademark Examining Attorney refused registration of Applicant’s mark on
the ground of likelihood of confusion under Trademark Act Section 2(d), 15 U.S.C.
§ 1052(d), citing the standard character mark AI, which is registered on the Principal
Register for “Wine,” in International Class 33.2
After the Examining Attorney made the refusal final, Applicant appealed and
requested reconsideration, which the Examining Attorney denied. The appeal then
resumed, and both Applicant and the Examining Attorney filed briefs.3 For the
reasons explained below, we affirm the refusal.
I. Likelihood of Confusion
Trademark Act Section 2(d), in relevant part, prohibits registration of a mark
that “so resembles a mark registered in the Patent and Trademark Office . . . as to be
likely, when used on or in connection with the goods of the applicant, to cause
confusion.” 15 U.S.C. § 1052(d). To determine whether confusion is likely, we analyze
all probative evidence relevant to the factors set out in In re E. I. du Pont de Nemours
2 Registration No. 3760988, issued on March 16, 2010; renewed. The registration includes the
following translation statement: “The English translation of ‘AI’ in the mark is INDIGO.”
3 The Examining Attorney’s Brief includes a renewed objection to evidence consisting of a
Google search results webpage, which Applicant submitted with its July 23, 2025 Request for
Reconsideration at TSDR 20. See 8 TTABVUE 2. Specifically, the Examining Attorney
asserts that “[a]lthough applicant has discussed the contents of webpages as evidence against
the refusal, applicant provided only a partial web address, which is not sufficient to introduce
the underlying webpage into the record.” Id. To properly introduce internet evidence into the
record, a party must provide (1) an image file or printout of the downloaded webpage, (2) the
date the evidence was downloaded or accessed, and (3) the complete URL address of the
webpage. See In re I-Coat Co., LLC, No. 86802467, 2018 TTAB LEXIS 171, at *7-9 (emphasis
added). Because Applicant failed to provide the complete URL address of the Google search
results webpage, we sustain the Examining Attorney’s objection and have not considered this
evidence.

Serial No. 98588895
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& Co., 476 F.2d 1357, 1361 (CCPA 1973) (“DuPont”). See In re Majestic Distilling Co.,
315 F.3d 1311, 1315 (Fed. Cir. 2003).
In every Section 2(d) case, two key DuPont factors are the similarity or
dissimilarity of the marks and respective goods, because 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.” Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976). Here, we have considered
each DuPont factor that is relevant and for which there is evidence and argument of
record. See 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 Citigroup Inc. v. Cap. City Bank Grp. Inc., 637 F.3d 1344, 1356 (Fed.
Cir. 2011); In re Shell Oil Co., 992 F.2d 1204, 1205 (Fed. Cir. 1993) (“[T]he various
evidentiary factors may play more or less weighty roles in any particular
determination.”). Ultimately, however, “each case must be decided on its own facts
and the differences are often subtle ones.” Indus. Nucleonics Corp. v. Hinde, 475 F.2d
1197, 1199 (CCPA 1973).
A. Comparison of the Marks
We begin with the first DuPont factor, which focuses on the similarity or
dissimilarity of the marks in their entireties as to appearance, sound, connotation,
and commercial impression. See Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin
Maison Fondee En 1772, 396 F.3d 1369, 1371 (Fed. Cir. 2005) (quoting DuPont, 476
F.2d at 1361). Similarity as to any one of these elements may be sufficient to support
a finding that the marks are confusingly similar. See Krim-Ko Corp. v. Coca-Cola Co.,

Serial No. 98588895
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390 F.2d 728, 732 (CCPA 1968) (“It is sufficient if the similarity in either form,
spelling or sound alone is likely to cause confusion.”); 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).
Both Applicant’s mark and the cited mark are AI in standard characters. The
Examining Attorney argues that the “marks are identical in appearance,” and “are
likely to engender the same connotation and overall commercial impression when
considered in connection with [A]pplicant’s and [R]egistrant’s respective goods and/or
services.”4
Applicant, however, points out that the cited registration contains a translation
statement indicating that the “English translation of ‘AI’ in the mark is INDIGO.”
According to Applicant, we must therefore apply the doctrine of foreign equivalents
to the cited mark, in which case “Applicant’s mark should be compared to the [Cited]
Mark as AI vs. INDIGO rather than as AI vs. AI.”5 Applicant argues that this
4 Examining Attorney’s Brief, 8 TTABVUE 7.
5 Applicant’s Brief, 6 TTABVUE 5. Applicant’s position is that “the use of the wording AI by
the Prior Mark, which is owned by a Japanese corporation, is in clear reference to [the
Japanese term] Ai Zome where ‘AI’ mainly refers to the blue color created by the dye” used
in a process to dye kimonos and other garments. Id. In support, Applicant provided an excerpt
from heddels.com indicating that “Ai Zome is a traditional hand-dyeing method using
Persicaria tinctoria, a plant more commonly known as Japanese Indigo.” March 21, 2025
Response to Nonfinal Office Action at TSDR 19. The excerpt goes on to note that the dyeing
method “has been used throughout Japanese history to dye Kimonos and other local
garments” and that “‘Ai’ mainly refers to the blue created by the dye but is also a nod to the
leaves of the plants.” Id.

Serial No. 98588895
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comparison leads to the conclusion that “overall presentation and commercial
impression” are “easily distinguishable.”6
Under the doctrine of foreign equivalents, a mark composed of a foreign term and
a mark composed that term’s English equivalent may be deemed confusingly similar
based on their similar connotations. See Palm Bay Imps., 396 F.3d at 1377; In re
Thomas, No. 78334625, 2006 TTAB LEXIS 135, at *8. But, in this case, Applicant is
arguing that, although the respective marks are identical they are not confusingly
similar, because Registrant’s mark would be translated, while Applicant’s mark
would not.
We see no basis for finding that ordinary American purchasers will translate AI
into the English term “indigo” when applied to Registrant’s wine, but not do the same
when AI is applied to Applicant’s distilled agave liquor. Applicant attempts to address
this issue by claiming that consumers will translate Registrant’s mark because of
Registrant’s own marketing,7 which indicates that Registrant’s “Ai” Cabernet
Sauvignon wine is “[n]amed ‘Indigo’ for a color whose significance is profound in
Japanese culture.”8 However, we may not consider extrinsic evidence of actual use of
the marks in our analysis of the marks’ commercial impressions; instead, we must
base our determination on how the marks appear in the application and registration,
without regard to how the marks may appear or be used in the marketplace. See In
6 Applicant’s Brief, 6 TTABVUE 5.
7 See id.
8 March 21, 2025 Response to Nonfinal Office Action at TSDR 20.

Serial No. 98588895
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re Aquitaine Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS 108, at *11 (“[W]e do
not consider how Applicant and Registrant actually use their marks in the
marketplace, but rather how they appear in the registration and the application. We
must compare the marks as they appear in the drawings, and not on any labels that
may have additional wording or information.”).
In this case, the marks are identical and, in the absence of evidence to the
contrary, the term AI appears to be arbitrary as applied to both Applicant’s distilled
agave liquor and Registrant’s wine. And we have no reason to conclude that the
nature of the respective goods somehow changes the connotation or commercial
impression of the term. Thus, any connotation or commercial impression attributed
to Applicant’s AI mark would also be attributed to Registrant’s AI mark.9 For that
reason, we need not determine whether the doctrine of foreign equivalents should be
applied to translate the cited mark.10
9 Accordingly, we also reject Applicant’s argument that Applicant’s mark “is most likely
pronounced as ‘A-I,’” whereas the cited mark “is likely to be pronounced as ‘eye’ based on its
Japanese origin.” Applicant’s Brief, 6 TTABVUE 4 (italics removed).
10 Examining Attorney’s Brief, 8 TTABVUE 6-7. Although we need not make a finding as to
whether the doctrine of foreign equivalents applies here, we agree with the Examining
Attorney that it is unlikely that ordinary American purchasers of Registrant’s wine would
stop and translate AI into the English term “indigo.” Applicant has provided evidence of the
meaning of “Ai” in Japanese and an excerpt from Registrant’s website, but nothing else to
support the argument that consumers would stop and translate AI, such as evidence showing
that an appreciable number of Americans are capable of translating the term into its English
equivalent. The Examining Attorney, however, made of record a dictionary excerpt showing
that “AI” is a recognized English term that serves as an abbreviation of “artificial
intelligence,” as well as internet news articles to that effect. April 23, 2025 Final Office Action
at TSDR 22-23; September 5, 2025 Denial of Request for Reconsideration at TSDR 6-19. This
evidence suggests that American consumers are more likely to take the mark AI as it is, and
would not recognize it as a Japanese term, much less translate it. Palm Bay Imps., 396 F.3d
at 1377 (“When it is unlikely that an American buyer will translate the foreign mark and will

Serial No. 98588895
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Accordingly, we find that the marks are identical in terms of sound, appearance,
connotation, and overall commercial impression. The first DuPont factor therefore
weighs strongly in favor of a conclusion that confusion is likely.
B. Comparison of the Goods
We now turn to the second DuPont factor, which concerns the similarity or
dissimilarity and nature of the respective goods, i.e., the relatedness of the goods.
DuPont, 476 F.2d at 1361. In assessing relatedness, we must consider the goods as
they are identified in Applicant’s application and the cited registration. See Stone
Lion Cap. Partners, LP v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014)
(quoting Octocom Sys., Inc. v. Hous. Comput. Servs. Inc., 918 F.2d 937, 942 (Fed. Cir.
1990)).
Here, Applicant’s goods are “Distilled agave liquor,” in International Class 33, and
Registrant’s goods are “Wine,” in International Class 33.
The Examining Attorney contends that the respective goods are related, and has
introduced the following supporting website excerpts showing third-party entities
offering both agave liquor and wine under the same mark:
• PurpleToadWinery.com offers both wine and “Agave Spirits” under
the PURPLE TOAD mark;11
• StJulian.com offers both wine and “silver agave spirit” under the ST
JULIAN mark;12
take it as it is, then the doctrine of foreign equivalents will not be applied.” (citing In re Tia
Maria, 1975 TTAB LEXIS 130, at *4 (no number in original)).
11 December 21, 2024 Nonfinal Office Action at TSDR 8-13.
12 Id. at 14-16.

Serial No. 98588895
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• ShopWineDirect.com offers both wine and agave spirits under the
RANCHO LA GLORIA mark;13
• ConneautCellars.com offers both wine and an “un-aged Silver/Blanco
Agave Spirit” under the CONNEAUT CELLARS mark;14
• OldHouseToday.com offers both wine and an “Agave Based Spirit”
under the OLD HOUSE VINEYARDS mark;15 and
• CapeFearDistillery.com advertises both “blue agave tequila” and
wines under the CAPE FEAR mark.16
This evidence demonstrates that wine and distilled agave liquor may emanate
from a single source under the same mark and thus may be perceived as 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 the relatedness analysis”); In re C.H. Hanson Co., No.
77983232, 2015 TTAB LEXIS 357, at *14-18 (finding relatedness where, inter alia,
internet evidence demonstrated goods commonly emanated from the same source
under a single mark).
Despite this evidence, Applicant argues that the respective goods are not related,
relying on 38 third-party registrations, each with a different owner and organized
into 19 pairs, to assert that the “USPTO’s past practice shows that the respective
13 Id. at 17-18.
14 April 23, 2025 Final Office Action at TSDR 6-7.
15 Id. at 13-19.
16 Id. at 20-21. The Examining Attorney also submitted excerpts from NoshobaWinery.shop,
which offers wine and “Blue Agave Spirit.” Id. at 11-12. The mark VALLEY VIEW appears
on the bottle for the agave spirit, while the wine features the NASHOBA mark. Id. But the
website excerpts clearly indicate that both types of beverages emanate from Nashoba Valley
Winery, Distillery, and Brewery. Id.

Serial No. 98588895
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goods are dissimilar and that many marks that are similar in appearance, sound, and
commercial impression coexist for use with wines and spirits/liqueurs.”17
However, we find that the pairs of marks submitted by Applicant do not present
the same circumstances as this case, which involves identical marks. In fact, while
each mark pair does share the same or similar term, many of them have additional
elements or wording that differentiate the marks.. Some examples are SLOE DE VIE
vs. MODE DE VIE; REBEL RESERVE vs. AMERICAN REBEL; RECIPE 21 vs.
CEPA 21; RUM DOG RUM vs FROSTY DOG; FIVE FARMS vs. FIVE RIVERS; and
BLACK RABBIT vs. CALIFORNIA RABBIT.18 Certainly, some of the other mark
pairs in the submitted third-party registrations are more similar than the foregoing
examples, but none of the pairs are as close to each other as the identical AI marks
in this case. In any event, none of these third-party registrations are proof that the
respective goods are unrelated, nor are they evidence that the USPTO has adopted a
particular policy or practice regarding the relatedness (or unrelatedness) of the goods.
Indeed, just as “‘there is no per se rule that holds that all alcoholic beverages are
related,”19 there is no per se rule that certain alcoholic beverages are unrelated. Nor
are we bound by prior decisions of examining attorneys to register other marks. See
In re Nett Designs Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001) (“Even if some prior
registrations had some characteristics similar to [Applicant’s] application, the
17 Applicant’s Brief, 6 TTABVUE 6. Applicant introduced the third-party registrations in its
July 23, 2025 Request for Reconsideration at TSDR 25-125.
18 See July 23, 2025 Request for Reconsideration at TSDR 25-125.
19 Applicant’s Brief, 6 TTABVUE 6 (quoting In re White Rock Distilleries, Inc., No. 77093221,
2009 TTAB LEXIS 601, at *7).

Serial No. 98588895
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[USPTO’s] allowance of such prior registrations does not bind the Board or this
court.”).
In sum, considering the evidence as a whole, in connection with the goods as they
are identified in the application and the cited registration, we find that the respective
goods may emanate from the same source under the same mark. Thus, the conditions
and activities surrounding the marketing and use of the goods are such that they
could be encountered by the same persons under circumstances that could give rise
to the mistaken belief that they originate from the same source when offered under
identical marks. See Coach Servs. v. Triumph Learning LLC, 668 F.3d 1356, 1396
(Fed. Cir. 2012); see also Schieffelin v. Molson, No. 91069312, 1989 TTAB LEXIS 1,
at *13. (“A typical consumer of alcoholic beverages may drink more than one type of
beverage and may shop for different alcoholic beverages in the same liquor store.”);
Monarch Wine v. Hood River, 1977 TTAB LEXIS 129, at *6 (“[W]e believe that a
prospective purchaser of an alcoholic beverage upon . . . browsing through the various
alcoholic products . . . displayed on the various shelves . . . in retail liquor
establishments would, upon encountering a [distilled spirit] identified by the term
‘MONARCH’, and then continuing . . . to another counter or section of the same store
and seeing a wine or champagne sold under the identical mark ‘MONARCH’, be likely
to believe that both products originated with the same producer.”) (no number in
original).
Therefore, the second DuPont factor supports the conclusion that confusion is
likely.

Serial No. 98588895
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C. Trade Channels and Classes of Consumers
Next, we consider the similarity or dissimilarity of established, likely-to-continue
channels of trade, the third DuPont factor. DuPont, 476 F.2d at 1361. Here, the
Examining Attorney’s evidence, discussed above, establishes that the goods at issue
are, in fact, offered through the same types of trade channels and encountered by the
same classes of consumers. We therefore find that the third DuPont factor also
supports a conclusion that confusion as to source is likely.
D. Purchasing Conditions and Sophistication of Purchasers
Under the fourth DuPont factor, we consider “[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. Applicant argues that the relevant purchasers of both
Applicant’s and Registrant’s goods “will be sophisticated,” and are “well educated,
and not likely to make . . . purchases on impulse.”20 Applicant adds that the
“respective goods . . . can be extremely expensive,” and thus “more care is taken” in
purchasing the goods.21
The goods, as identified, are not limited to particular classes or types of
purchasers, or to specific trade channels. Cunningham v. Laser Golf Corp., 222 F.3d
943, 948 (Fed. Cir. 2000) (affirming Board finding that where the identification is
unrestricted, “we must deem the goods to travel in all appropriate trade channels to
all potential purchasers of such goods”). Both types of beverages are available to the
20 Applicant’s Brief, 6 TTABVUE 6.
21 Id. at 7.

Serial No. 98588895
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general adult purchasing public and can be relatively inexpensive, as demonstrated
by the evidence of record showing prices less than $35 dollars and as low as $11.22
Further, we presume, as we must, that the standard of care for purchasing the goods
is that of the least sophisticated potential purchaser. See Stone Lion, 746 F.3d at
1325. Here, that least sophisticated purchaser is a member of the general public, who
may have less knowledge about the respective goods and exercise less caution when
making purchases, especially on the lower end of the price spectrum. And the record
does not contain any evidence that would lead us to believe that the such a purchaser
would exercise anything more than ordinary care. See In re Samsung Display Co.,
No. 90502617, 2024 TTAB LEXIS 258, at *25-25.
In any event, even sophisticated purchasers are not immune from source
confusion, especially where, as here, the relevant goods are related and are being, or
will be, offered under identical marks. See Shell Oil, 992 F.2d at 1208 (citing Weiss
Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 1548 (Fed. Cir. 1990) (affirming the
Board’s reasoning that even sophisticated purchasers may be confused by similar
marks)).
Accordingly, we deem the fourth DuPont factor neutral in our analysis.
E. Actual Confusion
The seventh and eighth DuPont factors relate, respectively, to the nature and
extent of any actual confusion and the extent of the opportunity for actual confusion.
See DuPont, 476 F.2d at 1361. These “factors are interrelated; the absence of evidence
22 See, e.g., December 21, 2024 Nonfinal Office Action at TSDR 15-16, 18.

Serial No. 98588895
13
of actual confusion, under the seventh DuPont factor, by itself is entitled to little
weight in our likelihood of confusion analysis unless there also is evidence, under the
eighth DuPont factor, that there has been a significant opportunity for actual
confusion to have occurred.” Keystone Consol. Indus. v. Franklin Inv. Corp., No.
92066927, 2024 TTAB LEXIS 290, at *75-76 (citing In re Cont’l Graphics Corp., No.
75033628, 1999 TTAB LEXIS 500, at *9; Gillette Can. Inc. v. Ranir Corp., No.
91082769, 1992 TTAB LEXIS 24, at *19).
Applicant argues that “[t]here has been no documented evidence that shows that
any consumers have confused the respective marks in commerce.”23 But we have no
evidence that the respective marks have coexisted in the marketplace under
conditions that would create a significant opportunity for actual confusion to have
occurred. And, as a general mater “the relevant test is likelihood of confusion, not
actual confusion.” In re Detroit Athletic Co., 903 F.3d 1297, 1309 (Fed. Cir. 2018). As
the Board has previously stated,
[t]he fact that an applicant in an ex parte case is unaware of any
instances of actual confusion is generally entitled to little probative
weight in the likelihood of confusion analysis, inasmuch as the Board in
such cases generally has no way to know whether the registrant likewise
is unaware of any instances of actual confusion, nor is it usually possible
to determine that there has been any significant opportunity for actual
confusion to have occurred.
In re Opus One, Inc., No. 75722593, 2001 TTAB LEXIS 707, at *19-20.
We therefore treat the seventh and eighth DuPont factors as neutral. See In re
Davey Prods. Pty, No. 77029776, 2009 TTAB LEXIS 524, at *22-25.
23 Applicant’s Brief, 6 TTABVUE 7.

Serial No. 98588895
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F. Extent of Potential Confusion
Applicant also invokes the twelfth DuPont factor, concerning “the extent of any
potential confusion, i.e., whether de minimis or substantial.” DuPont, 476 F.2d 1361.
Specifically, Applicant argues that “even if there were to be evidence of actual
confusion in the future, such instances can be dismissed as inconsequential or de
minimis.”24
This argument is speculative and otherwise unavailing. The marks here are
identical, and Applicant’s and Registrant’s goods are related, travel through the same
types of trade channels, and are offered to the same or overlapping classes of
purchasers. And the record contains no evidence that the goods at issue are marketed
to or purchased by a small or otherwise limited number of consumers. Thus, the
extent of potential confusion cannot reasonably be deemed to be de minimis. See, e.g.,
Davey Prods., 2009 TTAB LEXIS 524, at *26 (rejecting applicant’s argument that the
potential for confusion was de minimis where the goods at issue “would be marketed
to and purchased by significant numbers of purchasers”).
This factor is neutral.
II. Conclusion
Having considered all of the arguments and evidence of record pertaining to the
relevant DuPont factors,25 we find that the marks are identical; that Applicant’s
24 Id. at 15.
25 Applicant’s brief contains a section titled “The Fame of the Prior Mark,” in which Applicant
implicates the fifth DuPont factor by asserting that there is no evidence that the cited Prior
Mark is famous or has acquired secondary meaning within the marketplace or that
consumers associate the term AI with the Prior Owner.” Id. at 7. “Secondary meaning” is not

Serial No. 98588895
15
goods and Registrant’s goods are related; and that the respective goods travel through
the same types of trade channels and are offered to the same or overlapping classes
of purchasers. These DuPont factors all weigh in favor of a conclusion that confusion
is likely, while the remaining relevant factors are neutral. Accordingly, we conclude
that consumer confusion is likely.
Decision: The refusal under Trademark Act Section 2(d) to register Applicant’s
mark is affirmed.
required for a mark that is inherently distinctive, like the cited mark. Further, in an ex parte
appeal such as this one, the owner of the cited registration is not a party to the proceeding
and thus cannot introduce evidence regarding its use of the cited registered mark or any
resulting fame. In re Integrated Embedded, No. 86140341, 2016 TTAB LEXIS 470, at *26.
The Examining Attorney also “is under no obligation to demonstrate the fame of a cited
mark.” Id. Thus, to the extent the fifth DuPont factor is relevant at all, we deem it neutral.