Robert Sulic

This Opinion is Not a
Precedent of the TTAB
Mailed: January 7, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Robert Sulic
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Serial Nos. 79375327 & 79375609
_____
Alexander S. Lazouski, of Lazouski IP LLC,
for Robert Sulic.
Linda Lavache, Trademark Examining Attorney, Law Office 106,
Mary Sparrow, Managing Attorney
_____
Before Greenbaum, Elgin, and Casagrande, Administrative Trademark Judges.
Opinion by Casagrande, Administrative Trademark Judge:
Applicant Robert Sulic seeks Principal Register registration of BLACK SWAN (in
standard characters) and , both for “vodka,” in International Class 33.1
1 Both applications were filed based on requests for extension of protection of international
registrations under Section 66(a) of the Trademark Act of 1946, 15 U.S.C. § 1141f(a).
Application Ser. No. 79375327 for the standard-character mark BLACK SWAN (the ’327 or
“Standard-Character” application) was filed on July 3, 2023, based on based on International

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The applications were assigned to the same trademark examining attorney and
proceeded in parallel. Both ultimately were refused under Section 2(d), 15 U.S.C.
§ 1052(d), due to likelihood of confusion with the standard -character mark BLACK
SWAN, which is registered on the Principal Register for “wines” in International
Class 33.2
After the Examining Attorney made the refusals final,3 Applicant requested
reconsideration and appealed.4 We suspended the appeals and remanded to the
Examining Attorney to consider the reconsideration requests.5 After both requests
were denied,6 the appeals resumed.7 Both Applicant and the Examining Attorney
Registration No. 1742734. Application Ser. No. 79375609 (the ’609 or “BLACK SWAN
VODKA & design” application) was filed on June 26, 2023, and is based on International
Registration No. 1743375. The ’609 application disclaims exclusive right to use “VODKA”
apart from the mark as shown and describes the mark as follows: “The mark consists of a
black, grey and white castle set in black mountains with a grey and white sky and grey and
white clouds around it. Below is a white waterway featuring a black, grey and white swan.
Further below is the wording ‘BLACK SWAN’ in black and the word ‘VODKA’ in red, with
the wording appearing against a white background.” The ’609 application also contains the
statement: “The color(s) black, red, white and grey is/are claimed as a feature of the mark.”
2 Reg. No. 3055068 issued on January 31, 2006, and has been renewed.
3 See Oct. 29, 2024, Final Office Actions (both application files). Any citations to specific
pages of prosecution filings will be to .pdf-format versions of the documents as downloaded
from the USPTO’s TSDR electronic trademark docketing system.
4 See April 16, 2025, Requests for Reconsideration (both application files); Notices of
Appeal, 1 TTABVUE (both appeal files). References to the briefs and appeal records cite to
the Board’s TTABVUE electronic docket system. The number preceding “TTABVUE”
represents the docket number assigned to the cited filing in TTABVUE and any number
immediately following “TTABVUE” identifies the specifically-cited page(s), if any.
5 See 2 TTABVUE (both files).
6 See May 13, 2025, Denials of Reconsideration (both files).
7 See 5 TTABVUE (both files).

Serial Nos. 79375327 & 79375609
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filed appeal briefs.8 The appeals are now ready for decision. For the reasons explained
below, we affirm the refusals to register.
Before we address the merits, we note that the issues raised by the two appeals
are almost identical. Both applications were refused under Section 2(d) based on the
same registration. The evidence in the prosecution records is almost identical as well.
The briefs are largely the same, with a few exceptions, primarily concerning the
design elements in the ’609 application. Accordingly, although we have not formally
consolidated the appeals, we will address them together in this single opinion. Each
appeal will “retain[ ] its separate character,” however, and we will enter a separate
judgment for each appealed application. In re Consumer Protection Firm PLLC, No.
87445801, 2021 WL 825503, at *1-2 (TTAB 2021). We also will place a copy of this
decision in each appeal file. See id.; see also TRADEMARK TRIAL AND APPEAL BOARD
MANUAL OF PROCEDURE (TBMP) § 1214 (2025). Citations in this opinion to the briefs
and the record will be to the prosecution and appeal file involving the standard -
character ’327 application, unless otherwise noted.
ANALYSIS
Section 2(d) of the Trademark Act 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, or
to cause mistake, or to deceive.” 15 U.S.C. § 1052(d). We determine whether confusion
8 See 6 TTABVUE (Applicant’s briefs in both appeals); 8 TTABVUE (Examining Attorney’s
briefs in both appeals).

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is likely by analyzing all probative facts in evidence relevant to the likelihood-of-
confusion factors set forth in In re E.I. du Pont de Nemours & Co., 476 F.2d 1357,
1361 (CCPA 1973). See, e.g., In re Charger Ventures LLC, 64 F.4th 1375, 1379 (Fed.
Cir. 2023). Though du Pont lists thirteen numbered factors (some with subparts), we
generally address only those that are relevant and material to the case before us, see,
e.g., Shen Mfg. Co. v. Ritz Hotel, Ltd., 393 F.3d 1238, 1241 (Fed. Cir. 2004); Octocom
Sys., Inc. v. Houston Computer Servs., Inc., 918 F.2d 937, 943 (Fed. Cir. 1990) .
Typically, these are the factors that the parties address and on which there is relevant
evidence in the record. See, e.g., Dollar Fin. Grp., Inc. v. Brittex Fin., Inc., 132 F.4th
1363, 1371-72 (Fed. Cir. 2025); Cunningham v. Laser Golf Corp., 222 F.3d 943, 946-
47 (Fed. Cir. 2000). We then weigh our findings on these factors to determine if, on
balance, confusion is likely. See, e.g., Charger Ventures, 64 F.4th at 1381; In re
Majestic Distilling Co., 315 F.3d 1311, 1319 (Fed. Cir. 2003).
A. Comparison of the marks
The first likelihood-of-confusion factor assesses “[t]he similarity or dissimilarity
of the marks in their entireties as to appearance, sound, connotation and commercial
impression.” du Pont, 476 F.2d at 1361. Because the comparison of the marks is
always an important inquiry, see, e.g., 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), we next set forth the parameters governing how we
must compare the marks.

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In assessing the marks, we compare their “appearance, sound, connotation and
commercial impression.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334,
1340 (Fed. Cir. 2015) (citation omitted); accord In re i.am.symbolic, llc, 866 F.3d 1315,
1324 (Fed. Cir. 2017). Similarity in all aspects is not required. This factor supports
the refusal “if the similarity in either form, spelling or sound alone is likely to cause
confusion.” Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 732 (CCPA 1968)
(citation omitted); see also Sure-Fit Prods. Co. v. Saltzson Drapery Co., 254 F.2d 158,
160 (CCPA 1958) (“any one of the three factors may be sufficient to indicate likelihood
of confusion, but does not necessarily do so”) (citation omitted; emphases altered);
Hancock v. Am. Steel & Wire Co., 203 F.2d 737, 740 (CCPA 1953) (“it is proper to
consider [the marks’] appearance, sound and meaning … but a combination of all
three factors need not necessarily exist”) (cleaned up; citations omitted). We do not
compare the marks side-by-side, as though in a laboratory. Rather, we keep in mind
both that consumers depend on their recollection of marks to which they’ve previously
been exposed and that their memories are fallible. See, e.g., In re St. Helena Hosp.,
774 F.3d 747, 751 (Fed. Cir. 2014); Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d
1005, 1007 (CCPA 1981).
We compare marks in their entireties. See, e.g., Oakville Hills Cellar, Inc. v.
Georgallis Holdings, LLC, 826 F.3d 1376, 1380 (Fed. Cir. 2016). Sometimes, however,
“one feature of a mark may be more significant than another, and it is not improper
to give more weight to this dominant feature in determining the commercial

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impression created by the mark.” Coach Servs., Inc. v. Triumph Learning LLC, 668
F.3d 1356, 1368 (Fed. Cir. 2012) (citations omitted).
“Similarity is not a binary factor but is a matter of degree.” St. Helena Hosp., 774
F.3d at 752 (citation omitted). “The proper test is … 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.”
i.am.symbolic, 866 F.3d at 1323 (citation omitted); see also Phillips Petroleum Co. v.
Knox Indus. Corp., 277 F.2d 945, 947 (CCPA 1960) (“This issue is whether the marks
are confusingly similar, not whether they are identical.”) (citation omitted).
We start with the ’327 application for BLACK SWAN in standard characters.
Obviously, that mark is identical to the mark in the cited registration. Applicant does
not argue to the contrary.9 The Examining Attorney asserts that the mark is
arbitrary as to the identified goods (vodka). Applicant does not contest this assertion,
and we agree with it. Our primary reviewing Court has stated that “when word marks
are identical but neither suggestive nor descriptive of the goods associated with them,
the first DuPont factor weighs heavily against the applicant.” Majestic Distilling, 315
F.3d at 1315 (citations omitted); accord Tiger Lily Ventures Ltd. v. Barclays Cap. Inc.,
35 F.4th 1352, 1362 (Fed. Cir. 2022); In re Martin’s Famous Pastry Shoppe, Inc., 748
F.2d 1565, 1566 (Fed. Cir. 1984).
9 The concluding sentence in the section in Applicant’s brief entitled “Conclusion” refers to
“the differences between the marks.” See 6 TTABVUE. But the brief nowhere explains what
Applicant believes those differences might be, and we see none.

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As to the mark in the ’609 application, its first two words BLACK
SWAN constitute the entire mark of the cited registration.
Generally, first words tend to play a bigger role in the overall commercial
impression of a given mark because consumers tend to notice them first and retain
them better. See, e.g., In re Detroit Athl. Co., 903 F.3d 1297, 1303 (Fed. Cir. 2018)
(“The identity of the marks’ initial two words is particularly significant because
consumers typically notice those words first.”) (citations omitted); Sabhnani v.
Mirage Brands, LLC, No. 92068086, 2021 WL 6072822, at *18 (TTAB 2021)
(observing the “penchant of consumers to shorten marks and drop the non-source-
identifying word”) (cleaned up; citations omitted); Edom Lab’ys, Inc. v. Llichter, No.
91193427, 2012 WL 1267961, at *7 (TTAB 2012) (“The term CHIRO, as the first part
of opposer’s mark, is most likely to be impressed upon the mind of a purchaser and
remembered.”) (cleaned up, citation omitted).
In addition, the third term VODKA is the generic name of the goods; such terms
have no source identifying ability. See, e.g., San Francisco Arts & Athletics, Inc. v.
U.S. Olympic Comm., 483 U.S. 522, 531 n.7 (1987) (“a generic name by definition does
not distinguish the identity of a particular product”) (citations omitted). Generic
terms in marks generally are given less weight in determining overall commercial

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impression. See, e.g., In re Chatam Int’l Inc., 380 F.3d 1340, 1342-43 (Fed. Cir. 2004)
(“With respect to ALE, the Board noted that the term is generic and that the
registrant disclaimed it in its registration. Because ALE has nominal commercial
significance, the Board properly accorded the term less weight in assessing the
similarity of the marks under DuPont. As a generic term, ALE simply delineates a
class of goods.”) (citation omitted). We therefore find that, as to the literal elements
in Applicant’s “BLACK SWAN VODKA & design” mark, BLACK SWAN plainly is
dominant.
But there is a design element to the mark in the ’609 application, and Applicant
argues that “the commercial impression of [this mark] is dominated by
.10 We disagree. First, as Applicant’s description of the mark states,
the design features “a black, grey and white swan.” In Herbko Int’l, Inc. v. Kappa
Books, Inc., 308 F.3d 1156, 1165 (Fed. Cir. 2002), two marks both containing
CROSSWORD COMPANION were at issue, and the Court noted that the design in
that case:
connotes a crossword puzzle, which reinforces the
connotation created by the words of the mark. Thus, the
puzzle design does not convey any distinct or separate
impression apart from the word portion of the mark.
Rather, it serves only to strengthen the impact of the word
portion in creating an association with crossword puzzles.
10 See 6 TTABVUE 5 (’609 appeal). Applicant does not argue that the minimally-stylized
typeface or color of the words BLACK SWAN VODKA significantly distinguishes the marks.

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Id. at 1165. It therefore held that the design did not diminish substantial identity of
two marks. See also In re Wings Pub. Co., 148 F.2d 214, 216 (CCPA 1945) (“We also
think it clear that the commissioner’s holding that ‘Wings’ constitutes the dominant
feature of appellant’s mark is correct. The pictorial representation of wings upon
which the word is imposed, if it serves any purpose at all, seems to us merely to add
to the dominant character defined.”).
So, too, here. The depiction of a dark swan (in black, grey, and white) strengthens
the impact of the dominant literal terms BLACK SWAN. The remaining elements of
the design do little, if anything, to change or detract from that, serving simply as a
backdrop to the swan. For a consumer previously exposed to the registrant’s BLACK
SWAN word mark alone on wine, a mark with those very words, set forth below a
drawing of a floating swan that appears against the backdrop of mountains, clouds,
and a castle, does nothing to suggest the vodka comes from a different source.
Applicant argues that the cited BLACK SWAN registration provides no “rights”
to the owner as to any marks with additional words in them or with added design
elements.11 It is true that this registration itself is limited to the words in the
registration. Under Section 7(b) of the Act, 15 U.S.C. § 1057(b), “[a] certificate of
registration of a mark … shall be prima facie evidence of the validity of the
registered mark and of the registration of the mark, of the owner’s ownership of
the mark, and of the owner’s exclusive right to use the registered mark in
commerce on or in connection with the goods or services specified in the certificate
11 See 6 TTABVUE 5-6.

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….”) (emphasis added); see also In re Int’l Flavors & Fragrances, Inc., 183 F.3d 1361,
1366 (Fed. Cir. 1999) (“under the Lanham Act and the rules promulgated thereunder,
a trademark application may only seek to register a single mark”) (citing 15 U.S.C.
§ 1051). But Section 7(b) must be read in conjunction with other provisions of the Act,
and Section 2(d) provides that registration be refused to any other party’s mark that
“so resembles” the registered mark “as to be likely … to cause confusion” with that
mark, and that depends on “whether the marks are confusingly similar, not whether
they are identical.” Phillips Petroleum, 277 F.2d at 947 (citation omitted). Thus, as
we mentioned earlier, the issue we must decide is “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.” i.am.symbolic,
866 F.3d at 1323 (citation omitted); see also Phillips Petroleum, 277 F.2d at 947 (“This
issue is whether the marks are confusingly similar, not whether they are identical.”)
(citation omitted). Thus, this argument falls flat.
In sum, the mark in the ’327 application is identical to the cited registered mark,
and the mark in the ’609 application is very similar to the cited mark. In our final
weighing, this factor will count in favor of a conclusion that confusion is likely as to
both of Applicant’s marks.
B. Comparison of the goods
The second likelihood-of-confusion factor looks at “[t]he similarity or dissimilarity
and nature of the goods or services as described in an application or registration.” du
Pont, 476 F.2d at 1361. “Even if the goods and services in question are not identical,

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the consuming public may perceive them as related enough to cause confusion about
the source or origin of the goods and services.” Hewlett-Packard Co. v. Packard Press,
Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002) (citation omitted); In re Rsch. & Trading
Corp., 793 F.2d 1276, 1278 (Fed. Cir. 1986) (“It is … not necessary that the goods [or
services] of the parties be identical in order to sustain a finding of likelihood of
confusion.”) (citations omitted). Relatedness is not “an all-or-nothing factor” but
“should be analyzed along a sliding scale.” Joseph Phelps Vineyards, LLC v. Fairmont
Holdings, LLC, 857 F.3d 1323, 1328 (Fed. Cir. 2017).
There are several ways to show that consumers view non-identical goods as
related. One way is to show that the non-identical goods are “intrinsically related.”
See, e.g., Philip Morris Inc. v. K2 Corp., 555 F.2d 815, 816 (CCPA 1977) (noting this
as one way consumers may see products or services to be related). Here, both goods—
wines and vodka—are alcoholic beverages. That technically is an intrinsic
relationship, but, because of the breadth of the category of “alcoholic beverages,” in
this case it is not by itself a persuasive one. In re White Rock Distilleries, Inc., No.
77093221, 2009 WL 3401827, at *3 (TTAB 2009) (“Although vodka and wine may both
be described generally as ‘alcoholic beverages,’ this is insufficient to establish that
applicant’s and registrant’s goods are related.”) (citation omitted). But cf. Majestic
Distilling, 315 F.3d at 1315 (“we agree … that malt liquor and tequila are similar by
virtue of the fact that both are alcoholic beverages that are marketed in many of the
same channels of trade to many of the same consumers”).

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Another type of intrinsic relationship is when there is evidence that the goods are
“complementary,” i.e., they are, or can be, used together for a certain purpose. See,
e.g., Martin’s Famous Pastry, 748 F.2d at 1567; Int’l Diagnostic Tech., Inc. v. Miles
Labs., Inc., 746 F.2d 798, 800 (Fed. Cir. 1984); Key Chems., Inc. v. Kelite Chems. Corp.,
464 F.2d 1040, 1042 (CCPA 1972). Here, the Examining Attorney placed in the record
evidence that wines and vodka are used together in several mixed-drink beverages.12
Cf. White Rock Distilleries, 2009 WL 3401827, at *3 (“Also, there is no evidence that
energy vodka infused with caffeine and wine are ingredients for any particular
cocktails such that we could consider them complementary products that would be
bought and used together.”). Applicant makes the rhetorical point that, for example,
tomato juice and celery are essential ingredients in a Bloody Mary, but nevertheless
are unrelated goods.13 Perhaps, but that argument is somewhat further afield from
the relevant relatedness question presented here, where both goods are alcoholic
beverages and are used together in several mixed drinks.
But that is not the only evidence of relatedness in the record. Another
straightforward way to show that consumers perceive products or services as related
12 See White Wine + Vodka Spritzer (Rachelrayshow.com) (Oct. 29, 2024, Final Office
Action, at TSDR 167-69); Winter Sangria Pitcher (greygoose.com) (id. at 173-76); Tito’s
Spiced Winter Sipper (titosvodka.com) (id. at 179-81). We further note that a few companies
offer vodka that is made by distilling wine, showing another way that consumers are exposed
to the products being used together. See ST. JULIAN Winery•Distillery (Oct. 29, 2024, Final
Office Action, at TSDR 17-22); DIDA’S Distillery (id. at 77-85); VIDO VODKA (id. at 108-13);
VILLACANA Winery & Vineyard (id. at 121-24); HANSON OF SONOMA (May 13, 2025,
Denial of Reconsideration, at TSDR 5-11); CÎROC Vodka (id. at 13-15). Note that, while these
citations are to the file in the ’327 application, these uses are also found in the ’609 file.
13 See 6 TTABVUE 7-8. Applicant also gives the examples of milk in a White Russian and
salt in a Salty Dog.

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is to show that several companies offer the goods or services in an application and
those in a cited registration under the same mark. See, e.g., Naterra Int’l, Inc. v.
Bensalem, 92 F.4th 1113, 1117 (Fed. Cir. 2024); Detroit Athl. Co., 903 F.3d at 1306;
Hewlett-Packard, 281 F.3d at 1267. The more consumers see companies selling
certain non-identical goods under one mark, the more they tend to see those goods as
related, at least as concerns source identification. Here, the Examining Attorney
placed in the record evidence that over a dozen other companies do exactly that.14
In the same vein, another way to show relatedness is to show that third parties
have registered the same mark for both types of goods. See, e.g., Made in Nature, LLC
v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, at *24 (TTAB 2022); In re
Country Oven, Inc., No. 87354443, 2019 WL 6170483, at *5 (TTAB 2019); see also In
re Halo Leather Ltd., 735 F. App’x 722, 727 (Fed. Cir. 2018). Here, the Examining
Attorney placed in the record eighteen such third-party registrations, all of which are
use based.15 Even without the evidence mentioned above that vodka and wine are
14 See FIORE Winery & Distillery (Mar. 19, 2024, Nonfinal Office Action, at TSDR 8-13);
KOENIG Distillery and Koenig Winery offer vodka and wine under the KOENIG mark (id.
at 15-32); MOUNTAIN VIEW VINEYARDS (id. at 33-52); TYCOGA Winery & Distillery (Oct.
29, 2024, Final Office Action, at TSDR 7-15); ST. JULIAN Winery•Distillery (id. at 17-22);
GERVASI Vineyard offers vodka and wines under the GERVASI mark ( id. at 23-31);
LANTHIER Winery Distillery (id. at 51-61); LEWIS STATION Winery & Distillery (id. at
62-76); DAVIS VALLEY Distillery and DAVIS VALLEY Winery offers wine and vodka under
the DAVIS VALLEY mark (id. at 86-95); VALIANT Winery & Distillery (id. at 96-107);
WARWICK VALLEY Winery & Distillery (id. at 114-20); VILLACANA Winery & Vineyard
(id. at 121-24); INFINITY (id. at 125-30). These citations also appear in the ’609 file.
15 See LA INFIEL, Reg No. 6798592 (id. at 131); 3S UP RIGHT NOW, Reg. No. 7118890 (id.
at 132-33); NOSOLO, Reg. No. 5922786 (id. at 134-35); NÜTRL, Reg. No. 7504407 (id. at
136); SMOKE & GAMBLE & design, Reg. No. 6309815 (id. at 137-38); KITYKISS, Reg. No.
6309829 (id. at 136-40); SILK SPRING, Reg. No. 5967545 (id. at 141-42); BRUBUS SUBURB,
Reg. No. 6956770 (id. at 143-44); THE ART OF THE BLEND, Reg. No. 7164897 (id. at 145-
46); TIMBERLINE LODGE & design, Reg. No. 6430851 (id. at 147-48); THE BUSINESS,

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intrinsically related due to complementary use in mixed drinks, this third-party
evidence is more than sufficient to show that vodka and wine are related in a manner
that bears on source identification.
As to the third-party websites, Applicant argues that there is no evidence that any
of those companies have “national consumer recognition.”16 While we would consider
such evidence (and evidence to the contrary) if offered, there is no requirement that
an examining attorney undertake market research on these companies before we
consider evidence of third-party usage in the ex parte examination process. See
generally In re Pacer Tech., 338 F.3d 1348, 1352 (Fed. Cir. 2003) (the USPTO “is an
agency of limited resources” and “cannot be expected to shoulder the burden of
conducting market research”) (citations omitted).17
Reg. No. 7305231 (id. at 149); TEASKEY, Reg. No. 7081810 (id. at 150-51); STADE’S, Reg.
No. 6555398 (id. at 152-53); OLE SMOKY BUCKEYE MOONSHINE, Reg. No. 6257517 (id.
at 154-55); APRÉS HOURS, Reg. No. 7236951 (id. at 158-59); MEDAL ONE, Reg. No.
5704818 (id. at 161-62); AZNAURI, Reg. No. 7191001 (id. at 163-64); BLU ROSE VODKA,
Reg. No. 7327963 (id. at 165-66). We have not counted a couple of the registrations in the
record, one because it’s been cancelled and another because at renewal time the registrant
deleted vodka and wine from the identified goods. Please note that these citations are to the
’327 file but also appear in the ’609 file.
16 See 6 TTABVUE 4.
17 For this reason we also reject Applicant’s argument, see id. at 5, that the Examining
Attorney should be faulted for “provid[ing] no consumer surveys, no industry reports, market
studies or evidence from any nationwide retailers showing that major producers commonly
market these goods under a single mark.” See, e.g., In re Budge Mfg. Co., 857 F.2d 773, 775
(Fed. Cir. 1988) (the USPTO “has limited facilities for acquiring evidence—it cannot, for
example, be expected to conduct a survey of the marketplace or obtain consumer affidavits”);
In re Loew’s Theatres, Inc., 769 F.2d 764, 768 (Fed. Cir. 1985) (“The PTO does not have means
to conduct a marketing survey ….”).

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Applicant urges that we follow White Rock Distilleries, 2009 WL 3401827, in which
the Board found, on the record then before it, that vodka and wine were unrelated.18
The Examining Attorney deflects this argument by pointing out that the USPTO is
required to examine each application on the evidence in that case.19 We agree with
the Examining Attorney. Market circumstances are not static. They change and
evolve over time. In addition, the USPTO “is required to examine all trademark
applications for compliance with each and every eligibility requirement ….” In re
Cordua Rests., Inc., 823 F.3d 594, 600 (Fed. Cir. 2016). Together these two principles
mean that no prior decision’s factfinding controls a case with different facts and
evidence. See, e.g., Curtice-Burns, Inc. v. Nw. Sanitation Prods., Inc., 530 F.2d 1396,
1399 (CCPA 1976) (“[A]s we shall evidently have to continue saying ad nauseam: …
prior decisions on other marks for other goods are of very little help one way or the
other in cases of this type. Each case must be decided on its own facts and the
differences are often subtle ones.”) (cleaned up; citation omitted).
The evidentiary record persuades us that vodka and wine are related types of
goods, and we so find. This factor will weigh in favor of a conclusion that confusion is
likely when we do our final weighing and balancing of the relevant confusion factors.
C. Comparison of the channels of trade
Another factor that may bear on whether confusion is likely is “[t]he similarity or
dissimilarity of established, likely-to-continue trade channels.” du Pont, 476 F.2d at
18 See 6 TTABVUE 3-4.
19 See 8 TTABVUE 8-9.

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1361. The Examining Attorney points out that the third-party websites, cited in the
preceding section, show that vodka and wine may be purchased via the websites of
companies that make both, which show that the trade channels overlap at least to
that extent.20 The only thing Applicant’s briefs says about trade channels is to point
out that one of the third parties—KOENIG—has two different websites, one at
koenigvineyards.com and one at koenigdistillery.com.21 That may be true, but that
argument does not address the several other third parties that do offer their vodka
and wines together on a single website.
On this record, we find some limited overlap in the trade channels used for these
types of goods. This factor lends some support to a conclusion that confusion is likely.
D. Weighing the findings on the relevant factors together
Having made findings on each of the relevant likelihood-of-confusion factors, our
final step is to assess together the findings we have made on the relevant factors to
determine if, on balance, they indicate that confusion is likely as to the marks before
us. See, e.g., Charger Ventures, 64 F.4th at 1384.
The comparison of the marks is always an important factor. See, e.g., Federated
Foods, 544 F.2d at 1103 (“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.”); In re Max Cap. Grp. Ltd., No. 77186166, 2010 WL 22358,
at *1 (TTAB 2010) (“In any likelihood of confusion analysis, two key considerations
20 See 8 TTABVUE 12.
21 See 6 TTABVUE 5.

Serial Nos. 79375327 & 79375609
- 17 -
are the similarities between the marks and the similarities between the goods and/or
services.”) (citations omitted). The mark in the ’327 application is identical to that of
the cited registration. As we noted above, when, as here, the marks identical and
neither suggestive nor descriptive of the goods associated with them, this factor
weighs heavily against an applicant. Tiger Lily Ventures, 35 F.4th at 1362; Majestic
Distilling, 315 F.3d at 1315; Martin’s Famous Pastry, 748 F.2d at 1566.
The mark in the ’609 application, while not identical to that of the cited
registration, is very similar to it. In that case, therefore, this factor also weighs
squarely in favor of a conclusion that confusion is likely, if not quite as heavily as in
the case of Applicant’s ’327 application.
The evidence shows that consumer view the respective goods, vodka and wine, as
related. This factor, too, supports a conclusion that confusion is likely as to both
applications.
The evidence further shows that the trade channels for vodka and wine overlap.
This further points to confusion being likely as to both applications.
The relevant factors all point in the direction that confusion is likely. On this
record, we have no difficulty concluding that confusion is likely as to the marks in
both applications.
Decision: We affirm both refusals.