Jackson Family Farms, LLC v. Dylan Fairweather

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Mailed: January 30, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Jackson Family Farms, LLC
v.
Dylan Fairweather
_____
Opposition No. 91291000
_____
J. Scott Gerien, Joy L. Durand, and Allison N. Berk, of Dickenson, Peatman &
Fogarty for:
Jackson Family Farms, LLC.
Ian K. Boyd and Andrew M. Levad, of Sideman & Bancroft LLP for:
Dylan Fairweather.
_____
Before Wellington, Elgin, and Stanley,
Administrative Trademark Judges.
Opinion by Wellington, Administrative Trademark Judge:
Dylan Fairweather (“Applicant”) seeks registration on the Principal Register for
the standard character mark GOLD PALM for “alcoholic beverages containing wine;
aperitifs with a wine base; low alcohol wine; wine-based beverages; wine; wines and
liqueurs; wines and sparkling wines,” in Class 33.1
1 Application Serial No. 98004039, filed on May 19, 2023, based on Applicant’s allegation of
a bona fide intent to use the mark in commerce, under Section 1(b) of the Trademark Act, 15
U.S.C. § 1051(b).

Opposition No. 91291000
- 2 -
Jackson Family Farms, LLC (“Opposer) opposes registration of Applicant’s mark
under Trademark Act (“the Act”) Section 2(d), 15 U.S.C. § 1052(d), alleging likelihood
of confusion based on its two pleaded registrations for the mark, SILVER PALM (in
standard characters) for “wine”2 and “alcoholic beverages except beers,”3 both in Class
33.
Applicant denies the salient allegations of the Notice of Opposition in its Answer.4
The proceeding has been fully briefed.
I. The Record and Evidentiary Issues
The record comprises the pleadings, the file of the involved application under
Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b). The parties submitted evidence
during their assigned trial periods.
The Board has carefully reviewed all evidentiary submissions, and presumes the
parties’ familiarity therewith. Relevant evidence is discussed only where necessary
throughout this opinion. See QuikTrip W., Inc. v. Weigel Stores, Inc., 984 F.3d 1031,
1036 (Fed. Cir. 2021) (Board not obliged to expressly discuss every piece of evidence);
In re Miracle Tuesday LLC, 695 F.3d 1339, 1348 (Fed. Cir. 2012) (“[T]he mere fact
2 Reg. No. 3392494 (“Reg. ’494”) issued on March 4, 2008 on the Principal Register, and has
been renewed.
3 Reg. No. 4257569 (“Reg. ’569”) issued on December 11, 2012 on the Principal Register, and
has been renewed.
4 6 TTABVUE. Applicant also asserted, as “affirmative defenses,” what are essentially
arguments as to why he believes there is no likelihood of confusion. 6 TTABVUE 4-5. In any
event, Applicant did not pursue any putative affirmative defense. Keystone Consol. Indus. v.
Franklin Inv. Corp., No. 92066927, 2024 TTAB LEXIS 290, at *2 n.10 (“Affirmative defenses
that were asserted in an answer but then not pursued at trial may be deemed impliedly
waived, while affirmative defenses that were never asserted may be deemed forfeited.”).

Opposition No. 91291000
- 3 -
that the Board did not recite all of the evidence it considered does not mean the
evidence was not, in fact, reviewed.”); Plant Genetic Sys., N.V. v. DeKalb Genetics
Corp., 315 F.3d 1335, 1343 (Fed.Cir.2003) (“We presume that a fact finder reviews all
the evidence presented unless he explicitly expresses otherwise.”).
Opposer objects to Applicant’s submission of an evidentiary exhibit to his trial
brief—a copy of Opposer’s responses to Applicant’s requests for admissions.5 Opposer
argues that this submission, along with any of Applicant’s arguments in reliance
thereupon, should not be considered because the admissions were not submitted
during Applicant’s trial period.
Under Trademark Rule 2.121, “[n]o testimony shall be taken or evidence
presented except during the times assigned, unless by stipulation of the parties
approved by the Board, or upon motion granted by the Board, or by order of the
Board.” 37 C.F.R. § 2.121. See Hole In 1 Drinks, Inc. v. Lajtay, No. 92065860, 2020
TTAB LEXIS 9, at *4 (“a party may introduce testimony and evidence only during its
assigned testimony period”) (citation omitted). See also Trademark Rule 2.123(k), 37
C.F.R. § 2.123(k) (“Evidence not obtained and filed in compliance with these sections
will not be considered.”).
Because Opposer’s responses to Applicant’s admission requests were not timely
filed, we sustain the objection and the responses, as well as any argument relying
solely on them, are not considered.
5 18 TTABVUE 7-8 (Opposer’s objection); 17 TTABVUE 59-65 (“Exhibit 1” to Applicant’s
brief).

Opposition No. 91291000
- 4 -
II. Opposer’s Statutory Entitlement to Bring the Opposition
A plaintiff may oppose registration of a mark where such opposition is within the
zone of interests protected by the statute and the plaintiff has a reasonable belief in
damage that would be proximately caused by registration of the mark. Corcamore,
LLC v. SFM, LLC, 978 F.3d 1298, 1303 (Fed. Cir. 2020). Effectively, this is the same
as showing a real interest in the proceeding and a reasonable belief of damage. Id.
Opposer’s ownership of its pleaded registrations for the mark SILVER PALM, and
submission of copies showing their current status and title,6 support a plausible
likelihood of confusion claim against the involved application, and show its real
interest in this proceeding and a reasonable basis for its belief of damage. Coach
Servs. v. Triumph Learning LLC, 668 F.3d 1356, 1377 (Fed. Cir. 2012).
Opposer has established its statutory entitlement to bring this opposition.7
III. Priority
Opposer’s pleaded registrations are of record showing active status and Opposer’s
ownership, and Applicant has not filed any counterclaims to cancel the registrations.
Accordingly, priority is not at issue with respect to the marks and goods covered by
the registrations. See King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400,
1402 (CCPA 1974); Nkanginieme v. Appleton, No. 91256464, 2023 TTAB LEXIS 64,
at *11-12 (“unless there is a counterclaim against the opposer’s pleaded and proven
registration[s], priority is not at issue in a likelihood of confusion dispute”).
6 9 TTABVUE 19-26 (Not. Of Reliance Exs. 1-2).
7 We also note that Applicant, in its brief, does not contest Opposer’s entitlement to the cause
of action.

Opposition No. 91291000
- 5 -
IV. Likelihood of Confusion
Section 2(d) of the Act prohibits registration of a mark that “[c]onsists of or
comprises a mark which so resembles a mark registered in the Patent and Trademark
Office, or a mark or trade name previously used in the United States by another and
not abandoned, 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).
The determination under Section 2(d) involves an analysis of all of the probative
evidence of record bearing on a likelihood of confusion. In re E.I. DuPont de Nemours
& Co., 476 F.2d 1357, 1361 (CCPA 1973) (setting forth factors to be considered,
hereinafter referred to as “DuPont factors”); see also In re Majestic Distilling Co., 315
F.3d 1311, 1315 (Fed. Cir. 2003).
A likelihood of confusion analysis often particularly focuses on the similarities
between the marks and between the goods and/or services. See Federated Foods, Inc.
v. Fort Howard Paper Co., 544 F.2d 1098, 1103 (CCPA 1976) (“The fundamental
inquiry mandated by § 2(d) goes to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks.”). We consider each DuPont
factor for which there is evidence and argument. See, e.g., In re Guild Mortgage Co.,
912 F.3d 1376, 1379 (Fed. Cir. 2019). Opposer ultimately bears the burden of proving
its claim of likelihood of confusion by a preponderance of the evidence. Cunningham
v. Laser Golf Corp., 222 F.3d 943, 951 (Fed. Cir. 2000).

Opposition No. 91291000
- 6 -
A. Identical Goods; Channels of Trade and Classes of Consumers
We first consider the “similarity or dissimilarity and nature of the goods or
services”; “[t]he similarity or dissimilarity of established, likely-to-continue trade
channels” for the goods; and the classes of consumers to which the goods are
marketed. Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1320 (Fed.
Cir. 2014) (quoting DuPont, 476 F.2d at 1361).
Here, both the application and Reg. ’494 list “wine” in the identifications of goods
and, thus, are in-part identical. In addition, Reg. ’569 covers “alcoholic beverages
except beers” and this is broad enough to encompass all of the goods listed in the
application, particularly Applicant’s “alcoholic beverages containing wine,” making
these goods legally identical. See In re St. Julian Wine Co., No. 87834973, 2020 TTAB
LEXIS 196; In re Info. Builders Inc., No. 87753964, 2020 TTAB LEXIS 20 (finding
services legally identical in part where registrant’s services encompassed by
applicant’s services); In re Country Oven, Inc., No. 87354443, 2019 TTAB LEXIS 381
(quoting Sw. Mgmt., Inc. v. Ocinomled, Ltd., No. 94002242, 2015 TTAB LEXIS 176
(where the identification of services is broad, the Board “presume[s] that the services
encompass all services of the type identified”)).
Because neither Opposer nor Applicant have limited their channels of trade or
classes of consumers for their goods, as identified, we must presume that the legally
identical goods will be offered in the same trade channels to the same classes of
consumers. See In re Detroit Athletic Co., 903 F.3d 1297, 1308 (Fed. Cir. 2018) (when
there are no restrictions on channels of trade or classes of consumers in the

Opposition No. 91291000
- 7 -
identifications of an application or registration, it is presumed that the goods are sold
in “all normal trade channels to all the normal classes of purchasers”).
In view of the above, the second and third DuPont factors weigh heavily in favor
of finding a likelihood of confusion.
B. Similarity of the Marks SILVER PALM and GOLD PALM
Under the first DuPont factor, we determine the similarity or dissimilarity of
Opposer’s and Applicant’s marks in their entireties, taking into account their
appearance, sound, connotation and commercial impression. DuPont, 476 F.2d at
1361.
“The proper test is not a side-by-side comparison of the marks, but instead
whether the marks are sufficiently similar in terms of their commercial impression
such that persons who encounter the marks would be likely to assume a connection
between the parties.” i.am.symbolic, 866 F.3d at 1323 (quoting Coach Servs., Inc. v.
Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012) (internal quotation
marks omitted)). The focus is on the recollection of the average purchaser, bearing in
mind that it is not perfect and consumers may retain a general rather than a specific
impression of trademarks. See In re St. Helena Hosp., 774 F.3d 747, 751 (Fed. Cir.
2014) (“marks must be considered in light of the fallibility of memory and not on the
basis of side-by-side comparison”) (cleaned up; citation omitted); see also, Mini Melts,
Inc. v. Reckitt Benckiser LLC, No. 91173963, 2016 TTAB LEXIS 151, at *14; In re Mr.
Recipe, LLC, No. 86040643, 2016 TTAB LEXIS 80, at *18.

Opposition No. 91291000
- 8 -
Here, on their face, the obvious similarities between Opposer’s SILVER PALM
mark and Applicant’s GOLD PALM mark are that they share the same secondary
term and are preceded by a word representing a color or type of precious metal. In
contrast, the key difference between the marks is that they begin with different words
that are different in appearance and sound.
In terms of meaning or connotation, Opposer points out that “the term ‘palm’ is a
noun and is defined as ‘trees, shrubs, or vines with usually a simple stem and a
terminal crown of large pinnate or fan-shaped leaves.’”8 Opposer further argues that
the initial terms in the marks, SILVER and GOLD, are “less distinctive” because they
are “merely serving as an adjective to modify or describe the second term, PALM.”9
And, when each viewed in their entireties, the marks convey a similar meaning in
that Opposer’s mark evokes a silver or silver-colored palm tree and Applicant’s mark
evokes a gold or gold-colored palm tree. In support, Opposer points to the parties’ own
commercial use of their marks in this manner by displaying the marks in conjunction
with such silver or gold palm tree designs.10
Opposer further asserts that despite the parties’ use of “gold” and “silver,” terms
that appear and sound differently, they may actually increase the likelihood of
confusion because “consumers who are familiar with Opposer’s SILVER PALM mark
and recognize the differences in the SILVER PALM and GOLD PALM marks, will
8 14 TTABVUE 22, referencing definition submitted (at 9 TTABVUE 53).
9 14 TTABVUE 22.
10 14 TTABVUE 22-23.

Opposition No. 91291000
- 9 -
mistakenly believe that Applicant’s GOLD PALM mark is a variation of Opposer’s
mark that Opposer has adopted for use on a higher quality product line extension of
its SILVER PALM wine.”11 In support, Opposer submitted evidence showing that the
tiered system for value, medals or prizes—Gold (first), Silver (second) and Bronze
(third)—is used in various contexts.12 Indeed, it is common knowledge that this is the
tiered system for medal awards given out in the Olympic Games.
Opposer specifically relies on evidence showing this tiered system is frequently
applied in the context of wine, including quality awards from competitions, brand
labelling, and wine purchasing clubs. For example, in an online article “Inside The
Secretive World of Wine Competitions,” a wine competition manager explains:13
“In our competitions, the judges can award a double gold medal to
exceptional wines, which means the wine is rated between 95 and 100
points. The judges (who judge collaboratively in small groups of 3 or 4)
discuss and come to consensus on the final point score,” explains Debra.
She adds that a regular gold medal can receive 90 to 94 points, meaning
that it is a very high quality wine; while Silver medals are scored in the
80s, and mean that the wine is of good to very good quality. A Bronze medal
means the wine is solid with no flaws, but is not scored. Wines that receive
no awards may have a flaw, or lack balance in some way.
Screenshots from retail and winemakers’ websites demonstrate how the same
winemaker may tout their wine as “gold” and “silver” for purposes of representing
certain qualities; for example:14
11 14 TTABVUE 25.
12 9 TTABVUE (Not. of Reliance Exs. 11-64).
13 9 TTABVUE 61-62 (Not. of Reliance Ex. 11).
14 9 TTABVUE 135 (Not. of Reliance Ex. 25).

Opposition No. 91291000
- 10 -
.
In response to Opposer’s evidence, Applicant asserts any such evidence of tiered
system in connection with wine has “nothing to do with confusion between wine

Opposition No. 91291000
- 11 -
brands or consumer perception as to source of a wine product.”15 Applicant argues
that evidence of “wine competitions and wineries offering gold and silver medals and
gold- and silver-tiered labels or memberships … merely evince[s] ornamental or
informational use, not source-identifying branding.”16 Applicant asserts that “[i]t is
too far a reach for Opposer to argue that the mere existence of an awards or tier
system (generally present in all industries) means that consumers will confuse
Applicant’s wine and Opposer’s wine as emanating from the same source, particularly
given the enormous volume of other wine brands with a similar naming scheme also
on the market.”17
In terms of similarity and the meanings or connotations conveyed by the parties’
marks, the record offers some credence to Opposer’s argument that the tiering
system, in general and particularly as used in the context of wine, helps bring the
marks together. That is, should consumers be familiar with Opposer’s SILVER PALM
wine and then encounter Applicant’s GOLD PALM wine, it is likely these consumers
may attribute the initial terms in each mark as merely indicating a quality or status
for a series of wines emanating from the same source or the same line of wines from
the same winemaker. In other words, the evidence demonstrates that it would be
reasonable for the consumers to mistakenly believe that the Opposer’s SILVER
PALM wine is second, or has different qualities, in a line of PALM wines that includes
15 17 TTABVUE 49.
16 17 TTABVUE 50.
17 17 TTABVUE 50. Here, Applicant cites to decisions generally involving weakness of marks
based on extensive third-party use of the same or similar marks. We address the weakness
argument in the subsequent section of this decision.

Opposition No. 91291000
- 12 -
Applicant’s GOLD PALM wine. Indeed, because the parties’ respective marks are in
standard-character format, they could be displayed in any lettering style, color or
font, and Opposer could display its mark in a font similar to Applicant’s mark, or vice
versa, thereby heightening the likelihood of confusion. See Nike, Inc. v. Bauman-
Buffone, No. 91234556, 2019 TTAB LEXIS 65, at *18 (“The stylization of Applicant’s
mark is essentially irrelevant, because Opposer’s mark is registered in standard
characters and typed forms, and could be displayed in any font or size, including in a
manner similar to Applicant’s [mark].”) (internal citation omitted); In re Aquitaine
Wine USA, LLC, No. 86928469, 2018 TTAB LEXIS 108, at *13 (“Since Registrant’s
mark is a standard character mark, [it] may be presented in any font style, size or
color, including the same font, size and color as the literal portions of Applicant's
mark.”).18
In sum, while there are visual and aural differences between the parties’ marks,
we find Applicant’s GOLD PALM and Opposer’s SILVER PALM marks are similar in
appearance and sound. The marks are also likely to project similar commercial
18 In making our determination that the parties’ use of GOLD and SILVER preceding the
same term PALM supports a finding of similar connotations, we also considered Applicant’s
evidence: screenshots from third-party websites showing two examples of what appear to be
unrelated third parties using the terms GOLD and SILVER preceding the same term on
wine. These two examples are: (1) one website showing use of the mark GOLD COAST on
wine and another showing use of SILVER COAST on wine (at 10 TTABVUE 1095-1099); and
(2) one website showing use of SILVER LEAF on wine and another website showing use of
GOLDEN LEAVES on wine (at 10 TTABVUE 1130-1135). However, these two examples,
while probative, are not so persuasive to outweigh Opposer’s evidence showing how
consumers are likely to perceive the use of GOLD and SILVER preceding the same term as
conveying similar connotations when used in connection with wine.

Opposition No. 91291000
- 13 -
impressions and connotations. The marks are overall more similar than not, and this
factor also weighs in favor of finding a likelihood of confusion.
C. Strength or Weakness of Opposer’s SILVER PALM Mark
As discussed, supra, the “similarity of the marks” factor weighs in support of the
conclusion that confusion is likely. However, the weight we give that factor may
depend on other relevant factors that come into play; particularly, when supported,
the strength or weakness of Opposer’s mark may impact the weight given to the
similarity of the marks.
“Two of the DuPont factors (the fifth and sixth) consider strength.” Spireon, Inc.
v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023). ). “The fifth factor, ‘[t]he fame of
the prior mark (sales, advertising, length of use),’ . . . is a measure of the mark’s
strength in the marketplace.” Id. (quoting DuPont, 476 F.2d at 1361 and citing Joseph
Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1325 (Fed. Cir.
2017)). The sixth factor, “‘[t]he number and nature of similar marks in use on similar
goods’ . . . is a measure of the extent to which other marks weaken the assessed mark.”
Id. (quoting DuPont, 476 F.2d at 1361 and citing Palm Bay Imps., Inc. v. Veuve
Cliquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1373 (Fed. Cir. 2005)).
1. The Fifth DuPont Factor
The fifth DuPont factor enables a plaintiff to prove that its pleaded mark is
entitled to an expanded scope of protection by adducing evidence of “[t]he fame of the
prior mark (sales, advertising, length of use).” DuPont, 476 F.2d at 1361. The

Opposition No. 91291000
- 14 -
determination of strength “is not a binary factor,” but involves placement of the mark
along a spectrum. In re Coors Brewing Co., 343 F.3d 1340, 1345 (Fed. Cir. 2003).
Commercial strength, or fame, may be measured by consumer polls, “by the
volume of sales and advertising expenditures of the [goods and/or services] traveling
under the mark, and by the length of time those indicia of commercial awareness
have been evident.” Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d
1315, 1319 (Fed. Cir. 2018) (quoting Bose Corp. v. QSC Audio Prods., 293 F.3d 1367,
1371 (Fed. Cir. 2002) (internal citations omitted)). Commercial strength may also be
measured by “widespread critical assessments; notice by independent sources of the
goods or services identified by the marks; the general reputation of the goods or
services; and social media presence.” See Heil Co. v. Tripleye GmbH, No. 91277359,
2024 TTAB LEXIS 494, at *51.
Opposer asserts that its SILVER PALM mark “has achieved moderate commercial
strength,” pointing to its sales, advertising, social media exposure, and the length of
time of use of the mark on wine.19 Opposer submitted the testimony of Katy
Stambaugh, Vice President and Legal Counsel for Jackson Family Wines, Inc.
(“JFW”), Opposer’s licensee responsible “for the production, sale and distribution of
wine pursuant to a written license agreement … [including] all production, marketing
and sale of SILVER PALM products and JFW maintains all records for these
activities related to the SILVER PALM brand.”20 Ms. Stambaugh testified:
19 14 TTABVUE 19-20.
20 13 TTABVUE 4 (Stambaugh Dec. ¶ 5).

Opposition No. 91291000
- 15 -
• “The SILVER PALM mark has been used on and in association with wine for
sale in the United States since July 23, 2007.”21
• “From July 2020 through June 2024, JFW sold over [#] liters of SILVER PALM
branded wine, with a 750ml per bottle equivalent of [#] bottles, which
generated over [#] million in gross sales.”22
• “Opposer has advertised its SILVER PALM wine in magazines, at trade shows,
on the internet, in retail outlets and through social media outlets like X
(formerly known as Twitter), Instagram and Facebook.”23
• “Opposer’s SILVER PALM wine is sold in all fifty (50) states and the District
of Columbia by thirty-one (31) distributors. SILVER PALM wine is sold
through all outlets where alcohol beverage products are sold. Retail outlets
where the SILVER PALM wine is sold include liquor stores, such as Total Wine
& More, and supermarkets such as Harris Teeter and Food Lion. On-premise
outlets where the SILVER PALM wine is sold include bars and restaurants
such as Mastros and Ruth’s Chris Steak House.”24
Opposer has been recently successful with its SILVER PALM mark on wine. The
wine is sold across the country in some well-known retail establishments. However,
the sales figures are only for the years 2020-2024 and, while impressive on their face,
there is little other evidence from which we can determine their relative significance.
“Raw numbers of product sales and advertising expenses may have sufficed in the
past to prove fame of a mark, but raw numbers alone in today’s world may be
misleading.” Keystone Consol. Indus., Inc. v. Franklin Inv. Corp., No. 92066927, 2024
TTAB Lexis , at *16 (quoting Bose Corp. v. QSC Audio Prods., Inc., 293 F.3d 1367,
21 13 TTABVUE 4 (Stambaugh Dec. ¶ 6).
22 13 TTABVUE 4 (Stambaugh Dec. ¶ 12); the hashtag “#” replaces figures that are
designated “confidential” and redacted in the public version of the testimonial declaration.
An unredacted copy of the declaration is at 8 TTABVUE.
23 13 TTABVUE 4 (Stambaugh Dec. ¶ 13).
24 13 TTABVUE 4-5 (Stambaugh Dec. ¶ 14).

Opposition No. 91291000
- 16 -
1375 (Fed. Cir. 2002)). We further note that Stambaugh did not testify regarding
Opposer’s advertising and promotional expenditures.
In sum, Opposer’s evidence shows its SILVER PALM mark has enjoyed recent
success, but the record is not so persuasive to move the commercial strength dial in
a meaningful manner. Accordingly, the fifth DuPont factor is neutral in our analysis
of the likelihood of confusion.
2. The Sixth DuPont Factor
The sixth DuPont factor allows an applicant to contract that scope of protection of
Opposer’s mark by adducing evidence of “[t]he number and nature of similar marks
in use on similar goods.” DuPont, 476 F.2d at 1361. As the Federal Circuit has
explained, “[t]here are two prongs of analysis for a mark’s strength under the sixth
factor: conceptual strength and commercial strength.” Spireon, 71 F.4th at 1362
(citation omitted). “Conceptual strength is a measure of a mark’s distinctiveness . . .
and distinctiveness is often classified in categories of generally increasing
distinctiveness[:] … (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5)
fanciful.” Id. (citations omitted). “Distinctiveness is relevant to a mark’s overall
strength in the likelihood of confusion analysis.” Id. (citation omitted). “Commercial
strength, on the other hand, is ‘the marketplace recognition value of the mark.’” Id.
at 1363 (quoting 2 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 11:80 (5th ed. 2023)).
At the outset, and in terms of conceptual strength, we point out that “[b]ecause
Opposer’s mark is registered on the Principal Register, with no claim of acquired

Opposition No. 91291000
- 17 -
distinctiveness under Section 2(f), we presume it is inherently distinctive, i.e., that it
is at worst suggestive of the goods.” See Heil Co. v. Tripleye GmbH, No. 91277359,
2024 TTAB LEXIS 494, at *18 (citing 15 U.S.C. § 1057(b)).
Nevertheless, Applicant may show that the “existence of third-party registrations
on similar goods can bear on a mark’s conceptual strength.” Spireon, 71 F.4th at 1363
(citing Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir.
2015)). In this regard, Applicant argues that “[t]he pervasive use of comparable
marks on wine products here impacts the analysis of every factor, and is dispositive
that confusion is not likely.”25 In support, Applicant introduced twelve third-party
registrations for marks containing the term PALM, or derivation thereof, in
connection with wine.26 These are:
1. PALM COAST (Reg. No. 4728561);
2. (Reg. No. 3685004);
3. PALM BAY INTERNATIONAL (Reg. No. 7797183);
4. KING PALM (Reg. No. 6689289);
5. PALM READER WINES (Reg. No. 5398017);
25 17 TTABVUE 37.
26 10 TTABVUE 594-652.

Opposition No. 91291000
- 18 -
6. (Reg. No. 2960735 -- CANCELLED);27
7. (Reg. No. 5829706);28
8. LA PALMA (Reg. No. 2239109);
9. (Reg. No. 3489411);29
10. THREE PALMS VINEYARD (Reg. No. 4936048);
11. NOVAPALMA MAIA (Reg. No. 7683303); and
12. (Reg. No. 5243409).30
27 Cancelled on December 19, 2025 under Section 8 of the Act.
28 Full (stylized) wording in mark is: PALM PAR L’ESCARELLE.
29 Full (stylized) wording in mark is: LA PALMA RESERVA.
30 Full (stylized) wording in mark is: AKÈNTA CANTINA SANTA MARIA LA PALMA
ALGHERO.

Opposition No. 91291000
- 19 -
In reviewing the above third-party registrations, we initially note that the stylized
PALMERA registration (number 6) has been cancelled.31 “The existence of a cancelled
registration … does not establish that Opposer's mark is weak.” Bond v. Taylor, No.
91213606, 2016 TTAB LEXIS 218, at *17. In addition, as Opposer points out, the
NOVAPALMA MAIA registration (number 11) was registered under Section 66(a) of
the Act without a claim of use of the mark in commerce.32 This registration thus has
no probative value for purposes of demonstrating weakness. Made in Nature, LLC v.
Pharmavite LLC, No. 91223352, 2022 TTAB LEXIS 251, at *30-31.
Also, the PALM BAY INTERNATIONAL formative registrations (numbers 2 and
3) are owned by a single entity, as are the LA PALMA formative registrations
(numbers 8 and 9). Thus, we are left with ten third-party registrations relevant to
the question of weakness of the shared term PALM in connection with wine, and
these are owned by eight different entities.
While each of the ten third-party registrations are for marks containing the term
PALM or form thereof, several also either contain additional matter that diminishes
the importance of the term, by itself, or the term is used to convey a commercial
impression very different from the parties’ marks. For example, the PALM COAST
(number 1) and the PALM BAY INTERNATIONAL formative marks (numbers 2 and
31 See Note 27.
32 Section 66(a) of the Act, 15 U.S.C. § 1141f(a), essentially provides for registration of a mark
based on an international registration and provides for extension of protection to the U.S.
These registrants are initially not required to prove use of the mark in commerce.

Opposition No. 91291000
- 20 -
3) strongly suggest the name of a geographical location. The PALM READER WINES
mark (number 5), as Opposer points out and we agree, “gives the impression of a
person interpreting a person’s palm.”33 Finally, in the last listed registered mark
(number 12), it is the term AKÈNTA that appears in a more prominent, larger font
and the term PALMA is integrated with the rest of the significantly smaller wording.
We do not discount the relevancy of the third-party registrations for marks
containing the term PALM; however, they are few in number and for the
aforementioned reasons they are not very persuasive in terms of diminishing the
conceptual strength of Opposer’s mark. Applicant also did not introduce evidence
showing that these third-party registered marks, or any other marks containing the
term PALM, are actually used in commerce on wine. In other words, we cannot glean
from the evidence before us that consumers are accustomed to encountering marks
containing the term PALM in connection with wine. We thus cannot find any
commercial weakness. Indeed, in terms of showing that Opposer’s SILVER PALM
mark or that the shared term PALM itself is weak, the record before us falls into a
category often characterized as being a “far cry” from the type and amount of evidence
deemed significant or meaningful in other cases. See, e.g., In re Embiid, No.
88202890, 2021 TTAB LEXIS 168, at *52 (finding three examples to be “a far cry from
the large quantum of evidence of third-party use and third-party registrations that
was held to be significant” by the Federal Circuit in Jack Wolfskin Ausrustung Fur
Draussen GmbH v. New Millennium Sports, S.L.U., 797 F.3d 1363, 1374 (Fed. Cir.
33 18 TTABVUE 14.

Opposition No. 91291000
- 21 -
2015) and Juice Generation, 794 F.3d 1334), quoting In re Inn at St. John’s, LLC, No.
87075988, 2018 TTAB LEXIS 170, at *12.34
Applicant also submitted copies of sixty-two third-party registrations for marks
containing the term GOLD,35 and fifty-one third-party registrations for marks
containing the term SILVER,36 all in connection with wine. Applicant also introduced
screenshots from third-party websites showing use of GOLD- and SILVER- formative
marks in connection with wine.37 However, to the extent this evidence is relevant for
purposes of establishing weakness, this would tend to favor a finding that confusion
is likely. In other words, the relevance of such evidence undercuts Applicant’s
argument that GOLD and SILVER are the dominant elements of, respectively,
Applicant’s and Opposer’s marks. In other words, should consumers be accustomed
34 Applicant attempts to lump all of the third-party registrations and website evidence it
submitted in arguing that the record before us far exceeds that in Jack Wolfskin and other
cases. 17 TTABVUE 41 (“And beyond even the 12 third-party registrations in Pure & Simple
and 87 third-party registrations in Jack Wolfskin that the Federal Circuit held to constitute
“substantial” and “extensive” evidence that confusion is not likely, Applicant has provided
205 third-party registrations supporting its position, as well as 53 common law uses.”)
However, as made clear supra, there are only ten third-party registrations relevant to the
question of weakness of the shared term PALM in connection with wine. The other third-
party registrations and use evidence, as also discussed herein, play no meaningful role in
demonstrating that Opposer’s mark is weak nor help show that confusion is not likely in this
case.
We also point out that the Pure & Simple decision, to which Applicant refers, did not issue
as precedential. Pure & Simple Concepts, Inc. IHW Mgmt., 857 Fed. Appx. 652 (Fed. Cir.
2021) (unpublished). “Although parties may cite to non-precedential decisions, the Board
does not encourage the practice.” In re Morrison & Foerster LLP, No. 85263950, 2014 TTAB
LEXIS 100, at *14 n.6. In any event, in Pure & Simple, the Board relied on seventy-four third-
party registrations comprised of the shared term as well as twelve examples of advertised
use to find the term conceptually and commercially weak, which is not the case here.
35 10 TTABVUE 17-330.
36 10 TTABVUE 331-588.
37 10 TTABVUE 1095-1179.

Opposition No. 91291000
- 22 -
to encountering marks that begin with SILVER or GOLD in connection with wine,
they are likely focus on other elements in the mark for purposes of identifying the
source of the wine. In this case, the only other element in the parties’ marks is the
shared word, PALM.
Applicant also puts forth a “branding (or naming) convention” argument as to why
it believes consumers are not likely to be confused between the parties’ marks. That
is, Applicant asserts that a “branding convention” exists in connection with wine
because “the wine industry is awash in brand names that follow the familiar and non-
distinctive [COLOR]+[OBJECT] pattern like GOLD PALM and SILVER PALM.”38 As
a result of this “branding convention,” Applicant states that “[t]he reality is that wine
consumers are constantly exposed to these naming conventions from unrelated
parties and are well-practiced at telling them apart.”39 In support, Applicant
submitted:
• eighty third-party registrations for “[color]+[object]” format marks consisting
of a on wine;40
• Screenshots from fifty-four third-party websites showing use of
“[color]+[object]” formatted marks in connection with wine.41
38 17 TTABVUE 23.
39 17 TTABVUE 7.
40 10 TTABVUE 3-1042 (Ex. A).
41 10 TTABVUE 1043-1182 (Ex. B).

Opposition No. 91291000
- 23 -
In particular and within this evidence, Applicant asserts that there “a branding
convention of a color plus a type of flora,”42 pointing to the following:43
• four third-party registrations or third-party uses for marks having a [color]-
OAK format;
• three third-party registrations for marks having a [color]-VINE format;
• two third-party registrations for marks having a [color]-WILLOW format;
• two third-party registrations for marks having a [color]-LILY format;
• three third-party website uses for marks having a [color]-LEAF format;
• six third-party website uses for marks having a [color]-ROSE format; and
• two third-party website uses for marks having a [color]-BLOSSOM format.
As Opposer points out, Applicant “cites no applicable authority to support his
‘naming convention’ argument.”44 Opposer further notes that the cases that Applicant
seems to rely upon for its “branding convention” argument do not involve discussions
of weakness based on a ‘branding convention,’ but rather on the alleged weakness of
common element or term within two marks. That is, as to the unpublished Pure &
Simple decision (see Note 34) that Applicant cites frequently, that case involved the
marks INDUSTRY and BLUE INDUSTRY, and it was the shared term INDUSTRY
that was the focus of weakness evidence. Similarly, in Jack Wolfskin, the involved
marks were KELME (stylized with a paw print design) and “nonhuman paw print,”
42 17 TTABVUE 23.
43 The other “[color]+[object]” marks for which Applicant submitted third-party registrations
or website screenshots include “objects” such as: -ROCK, -STONE, -CLIFF, -MOUNTAIN, -
VALLEY, -HILL, -RIDGE, -COAST, -STAG, etc.
44 18 TTABVUE 10.

Opposition No. 91291000
- 24 -
and the Federal Circuit, in reversing a Board decision, found the marks’ dissimilarity
“confirmed by the considerable evidence of third-party registration and usage of
marks in commerce that depict paw prints on clothing.” 797 F.3d at 1374.
Here, PALM is the common element of the parties’ marks that makes them
similar. The “[color]+[object]” convention evidence Applicant submitted lacks
probative value for purposes of demonstrating weakness because none of the marks
referenced include the term PALM.
After reviewing Applicant’s evidence in its entirety, we do not agree with
Applicant’s assessment that there is an “overwhelming proliferation of comparable
marks on wine products” and certainly disagree with the conclusion that the evidence
“forecloses any likelihood of confusion here.”45 Rather, there are few third-party
registrations for marks containing the term PALM on wine and several of those use
the term in a very different manner from Applicant’s and Opposer’s marks. The
“[color]+[object]” evidence has little to no relevance; here, we are focused on any
possible weakness in connection with the shared element, PALM, that is the key to
bringing Applicant’s GOLD PALM mark and Opposer’s SILVER PALM mark
together.
In sum, Opposer’s SILVER PALM mark is inherently distinctive. The few third-
party registrations also containing the term PALM for wine make no meaningful
impact in terms of weakness or on our evaluation of the marks’ similarity.
45 17 TTABVUE 27.

Opposition No. 91291000
- 25 -
Accordingly, the fifth DuPont factor is neutral.46
D. Level of Purchasing Care
Under the fourth DuPont factor, we consider “[t]he conditions under which … sales
are made, i.e., ‘impulse’ vs. careful, sophisticated purchasing.” DuPont, 476 F.2d at
1361. As a general matter, “we must make our determination based on the least
sophisticated consumer.” In re Guild Mortg. Co., No. 86709944, 2020 TTAB LEXIS
17, at *17 (citing Stone Lion, 746 F.3d at 1325); In re FCA US LLC, No. 85650654,
2018 TTAB LEXIS 116, at *29.
Applicant concedes that “it is not disputed that … many of the[ parties’] consumers
are not particularly sophisticated.”47 In addition, because there are no price
restrictions in the parties’ identifications of goods, we must contemplate their wine
can be sold at all price points. See In re Bercut-Vandervoort & Co., 1986 TTAB LEXIS
124, at *6-7 (evidence that relevant goods are expensive wines sold to discriminating
purchasers must be disregarded given the absence of any such restrictions in the
identifications).48 In other words, we must consider the parties’ goods to include “less
expensive wine sold to ordinary consumers through liquor stores, grocery stores,
supermarkets, drug stores and the like.” Bercut-Vandervoort, 1986 TTAB LEXIS 124,
46 We hasten to add, however, that even if Applicant’s evidence were sufficient to establish
some conceptual weakness in Opposer’s mark, it would result in the fifth DuPont factor only
weighing slightly in favor of Applicant, and our ultimate decision on likelihood of confusion
would be the same.
47 17 TTABVUE 56.
48 In any event, the record establishes the parties’ wine do not actually have significantly
high price points—“average” price of Applicant’s GOLD PALM wine is $14.99 (11 TTABVUE;
Fairweather Dec. ¶ 4), and the “MSRP” for Opposer’s SILVER PALM wine is $19 per bottle
(8 TTABVUE; Stambaugh Dec. ¶ 8).

Opposition No. 91291000
- 26 -
at *7. Under such circumstances, consumers are prone to making ‘impulse
purchasing’ decisions. See Recot, Inc. v. Becton, 214 F.3d 1322, 1329 (Fed. Cir. 2000)
(“When products are relatively low-priced and subject to impulse buying, the risk of
likelihood of confusion is increased because purchasers of such products are held to a
lesser standard of purchasing care.”).
The fourth DuPont factor is neutral.
E. Other Neutral Factors: Concurrent Use Without Evidence of
Confusion – No Bad Faith – De Minimis Potential Confusion
The seventh and eighth DuPont factors involve, respectively, any instances of
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 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., No. 92066927, 2024 TTAB LEXIS 290, at
*75-76 (citations omitted). Put differently, the absence of any reported instances of
confusion is meaningful only if the record indicates appreciable and continuous use
by Applicant of its mark for a significant period of time in the same markets as those
served by Opposer and its mark. Barbara’s Bakery, Inc. v. Landesman, No. 91157982,
2007 TTAB LEXIS 9, at *14.
In this case, Applicant argues that “[d]espite both parties[ ] using the mark in at
least New York, Maine, New Hampshire, Connecticut, Rhode Island, Massachusetts,
South Carolina, and Florida, and in Internet commerce generally for at least two

Opposition No. 91291000
- 27 -
years, there has been no actual confusion of any kind.”49 In support, Applicant
testified that he has “utilized a sales manager on the ground in the U.S. for over 2
years now, building pre-sales prior to the launch of the GOLD PALM wine products,
incurring over $200,000 in expenses” and the “[t]otal marketing/promotional
investment in the GOLD PALM brand over the past two years in the U.S. exceeds
$400,000.”50 Also, in addition to testifying that his wines are “available” in the above-
mentioned states, he avers that “[m]ultiple distribution deals have been entered into
in the United States regarding the GOLD PALM products, with five different U.S.
distributors currently distributing the GOLD PALM wines.”51
However, Applicant’s testimony lacks sufficient information for us to gauge
whether a meaningful opportunity for actual confusion existed in the relatively short
period of two years. Specifically, he does not testify how many bottles of GOLD PALM
wine have been sold in the U.S. or whether there has been an actual overlap of
distributors, retail outlets, or advertisement channels for the parties’ wine. We
cannot conclude that the “circumstances have been such that [actual confusion] could
be expected to have happened.” Gillette Canada Inc. v. Ranir Corp., No. 91082769,
1992 TTAB LEXIS 24, at *19. Accordingly, the seventh and eighth DuPont factors
are neutral.
49 17 TTABVUE 54.
50 11 TTABVUE (Fairweather Dec. ¶ 2).
51 11 TTABVUE (Fairweather Dec. ¶¶ 3-4).

Opposition No. 91291000
- 28 -
Applicant also argues that the ninth and thirteenth DuPont factors weigh in his
favor because, respectively, “Opposer does not use SILVER PALM on a wide variety
of goods, even further reducing the likelihood of confusion”52 and “Applicant did not
adopt GOLD PALM with any intent to confuse.”53 However, these are factors that,
based on the evidence, the Board may weigh in favor of finding a likelihood of
confusion; otherwise, they are deemed neutral in our likelihood of confusion analysis.
Put simply, the ninth DuPont factor considers “[t]he variety of goods on which a
mark is or is not used (house mark, ‘family’ mark, product mark),” DuPont, 476 F.2d
at 1361, and is relevant when the parties’ goods may not be obviously related. See
generally Monster Energy v. Lo, 2023 TTAB LEXIS 14, at *54-55. In this case, given
the identity of the parties’ identified goods, “we find it unnecessary to rely on this
factor.” Made in Nature, LLC v. Pharmavite LLC, 2022 TTAB LEXIS 228, at * 75. It
is therefore neutral.
Similarly, while evidence of a junior party’s bad faith adoption of a mark typically
weighs in favor of a likelihood of confusion, the converse is not true. Eveready Battery
Co. v. Green Planet, Inc., No. 91180015, 2009 TTAB LEXIS 490, at *16. Accordingly,
the thirteenth DuPont factor does not weigh in Applicant’s favor simply because he
has adopted the GOLD PALM mark in good faith.
Finally, Applicant urges the twelfth DuPont factor “favors Applicant, especially in
the absence of substantial evidence establishing that multiple brand owners offer
52 17 TTABVUE 54.
53 17 TTABVUE 55.

Opposition No. 91291000
- 29 -
their respective wines under differing, but commonly owned, trademarks utilizing the
same object and differing colors.”54 Applicant is simply reiterating the weakness and
“brand convention” arguments, previously addressed under the sixth DuPont factor
and our finding as to that factor stands on its own. The twelfth DuPont therefore is
neutral.
F. Conclusion: Balancing of Factors
We must “weigh the DuPont factors used in [our] analysis and explain the results
of that weighing.” In re Charger Ventures LLC, 64 F.4th 1375, 1383-84 (Fed. Cir.
2023). “In any given case, different DuPont factors may play a dominant role,” and
the “weight given to each factor depends on the circumstances of each case.” Id.
(citation omitted).
Applicant’s and Opposer’s goods are the same—wine. These goods will be offered
in the same trade channels to the same classes of consumers. These factors weigh
heavily in favor of finding confusion likely. In addition, we find Applicant’s mark,
GOLD PALM, is overall similar to Opposer’s mark, SILVER PALM, in appearance
and sound, and these marks may convey similar commercial impressions. There are
no factors that weigh against finding a likelihood of confusion and, with respect to
the other factors argued, we find them neutral in our analysis.
On balance, we have no difficulty concluding that there is a likelihood of confusion
between Applicant’s mark, GOLD PALM, and Opposer’s registered mark, SILVER
PALM.
54 17 TTABVUE 55.

Opposition No. 91291000
- 30 -
Decision: The Notice of Opposition is sustained under Section 2(d) of the Act.