Coffee Concepts LLC

This Opinion is Not a
Precedent of the TTAB
Mailed: February 19, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re Coffee Concepts LLC
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Serial No. 98046428
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Steven M. Forte of Honigman LLP for Coffee Concepts LLC.
Elaine Xu, Trademark Examining Attorney, Law Office 128,
Travis Wheatley, Managing Attorney.
_____
Before Larkin, Dunn, and Casagrande,
Administrative Trademark Judges.
Opinion by Larkin, Administrative Trademark Judge:
Coffee Concepts LLC (“Applicant”) seeks registration on the Principal Register of
the composite word-and-design mark shown below:

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for goods ultimately identified as “coffee; coffee-based beverages; all of the foregoing
goods not infused with alcohol, not used as an ingredient in alcoholic beverages, and
not sold in connection with alcoholic beverages” in International Class 30.1
The Examining Attorney has refused registration of Applicant’s mark under
Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that it so
resembles the standard-character marks described below and registered on the
Principal Register, as to be likely, when used in connection with the goods identified
in the application, to cause confusion:
• BEEKEEPER for “alcoholic beverages except beers” in International Class
33;2
• BEEKEEPER’S BLEND for “wine” in International Class 33;3 and
• BEEKEEPER’S BLEND for “wine made from grapes” in International
Class 33.4
1 Application Serial No. 98046428 was filed on June 16, 2023 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), based on Applicant’s claim of a bona fide intention to
use the mark in commerce. Applicant describes its mark as follows: “The mark consists of the
phrase ‘BEE KEEPER COFFEE’ with ‘BEE KEEPER’ being in a larger font and set above
‘COFFEE’ and with a design that appears to be a drip coming out of the bottom of the letter
‘K’.” Applicant has disclaimed the exclusive right to use COFFEE apart from the mark as
shown. Color is not claimed as a feature of the mark.
2 Registration No. 4050401 (the “’401 Registration”) issued on November 1, 2011 to Ian
Blackburn, and has been renewed.
3 Registration No. 4524046 (the “’046 Registration”) issued on May 6, 2014 to Abeja LLC, and
has been renewed.
4 Registration No. 4524226 (the “’226 Registration”) issued on May 6, 2014 to Abeja, LLC and
has been renewed.

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When the Examining Attorney made the refusal final, Applicant appealed and
simultaneously requested reconsideration, which was denied. The appeal is fully
briefed.5 We affirm the refusal to register.
I. Prosecution and Procedural History, and Record on Appeal6
We summarize below the prosecution and procedural history of the application
because it provides useful background to our disposition of the appeal.
Applicant originally filed to register its mark for goods identified as “coffee; coffee-
based beverages; teas; tea-based beverages; food bars.”7 The Examining Attorney
initially refused registration under Section 2(d) based on the three cited registrations
described above and other registrations, and noted possible bars to registration based
on prior-pending applications.8 The Examining Attorney also required Applicant to
amend its identification of goods.9 The Examining Attorney made of record USPTO
electronic records regarding the cited registrations,10 and pages from the websites of
5 Citations in this opinion to the briefs and other materials in the case docket refer to
TTABVUE, the Board’s online docketing system. The number preceding TTABVUE
corresponds to the docket entry number, and any numbers following TTABVUE refer to the
page(s) of the docket entry where the cited materials appear. Applicant’s appeal brief appears
at 10 TTABVUE and its reply brief appears at 13 TTABVUE. The Examining Attorney’s brief
appears at 12 TTABVUE.
6 Citations in this opinion to the application record are to pages in the downloadable .pdf
version of the Trademark Status & Document Retrieval (“TSDR”) database of the United
States Patent and Trademark Office (“USPTO” or “Office”).
7 June 16, 2023 Application at TSDR 1.
8 March 6, 2024 Office Action at TSDR 3-6. The Examining Attorney ultimately did not
pursue refusals based on the other registrations and the prior-pending applications, and we
will not discuss evidence that is not germane to the final refusal before us.
9 Id. at TSDR 6-7.
10 Id. at TSDR 10-11, 15-17.

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distillers and vintners that she claimed showed the relatedness of the involved
goods.11
Applicant responded by amending its identification of goods to “coffee; coffee-
based beverages” and arguing against the refusal.12 Applicant made of record pages
from its website at beekeepercoffee.com;13 dictionary definitions of the words “blend”
and “natural;”14 Wikipedia entries regarding coffee and alcoholic beverages;15
webpages regarding the purchasing of coffee in supermarkets and the marketing and
purchasing of alcoholic beverages;16 webpages regarding the sale of coffee and
alcoholic beverages in different sections of grocery stores;17 webpages from
usatoday.com regarding state laws regarding the sale of alcoholic beverages;18
webpages from statista.com regarding the online sale of wine and liquor;19 webpages
regarding the reasons for the consumption of coffee and alcohol;20 and webpages
displaying the use of BEE KEEPER- and BEEKEEPER-formative marks for wine
and other alcoholic beverages.21
11 Id. at TSDR 20-163.
12 August 30, 2024 Response to Office Action at TSDR 11-21.
13 Id. at TSDR 22-24.
14 Id. at TSDR 25-27 (THE AMERICAN HERITAGE DICTIONARY).
15 Id. at TSDR 38-50.
16 Id. at TSDR 51-62.
17 Id. at TSDR 63-70.
18 Id. at TSDR 71-77.
19 Id. at TSDR 78-80.
20 Id. at TSDR 81-91.
21 Id. at TSDR 92-112.

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The Examining Attorney then issued an Office Action accepting Applicant’s
amendment to its identification of goods and making final the Section 2(d) refusal to
register based on the three cited registrations discussed above.22 The Examining
Attorney made of record additional webpages from vineyards that she claimed
showed that vineyards also sell coffee.23
Applicant then appealed and simultaneously requested reconsideration. In its
Request for Reconsideration, Applicant further amended its identification of goods to
“coffee; coffee-based beverages; all of the foregoing goods not infused with alcohol, not
used as an ingredient in alcoholic beverages, and not sold in connection with alcoholic
beverages,”24 and made of record a 2013 “Trademark Co-Existence Agreement”
between the owner of the cited ’401 Registration and the owner of the cited ’046 and
’226 Registrations;25 pages from the website of the owner of the cited ’401 Registration
at merchantofwine.com;26 webpages that Applicant claimed show that distilleries and
wineries are not the normal trade channels for alcohol and coffee;27 webpages that
Applicant claimed show the number of active distilleries and wineries in the United
22 September 17, 2024 Final Office Action at TSDR 1-7.
23 Id. at TSDR 9-26.
24 January 15, 2025 Request for Reconsideration at TSDR 5.
25 Id. at TSDR 23-25.
26 Id. at TSDR 26-35.
27 Id. at TSDR 36-73.

Serial No. 98046428
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States;28 and webpages that Applicant claimed show the normal trade channels for
coffee.29
The Examining Attorney denied Applicant’s Request for Reconsideration, making
of record webpages that she claimed show that alcoholic beverages and coffee are
increasingly viewed as related goods,30 and USPTO electronic records regarding 15
use-based third-party registrations of marks for both coffee and various types of
alcoholic beverages.31 The appeal was then resumed. 5 TTABVUE.
Prior to the due date of Applicant’s appeal brief, Applicant filed a request for
remand of the application to the Examining Attorney for consideration of additional
evidence consisting of (1) USPTO electronic records regarding the cited registrations,
6 TTABVUE 6-21, (2) USPTO electronic records regarding the file history of a second
application filed by Applicant to register BEE KEEPER in standard characters for
“Coffee; Coffee based beverages; Coffee beans,” in which a different examining
attorney had noted a prospective citation of a prior-pending application filed by
Trinity Bay LLC to register “BEEKEEPER’S DELIGHT” for “Non-alcoholic beers;
Non-alcoholic cocktails, namely, mocktails; Non-alcoholic distilled spirits; Non-
alcoholic honey-based beverages; Non-alcoholic water-based beverages” (the “Trinity
Bay Application”), id. at 22-86, and (3) USPTO electronic records regarding the file
28 Id. at TSDR 74-114.
29 Id. at TSDR 115-32.
30 February 28, 2025 Denial of Request for Reconsideration at TSDR 6-32.
31 Id. at TSDR 33-62.

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history of the Trinity Bay Application. Id. at 87-248. The Board granted Applicant’s
Request for Remand, and the appeal was again suspended. 7 TTABVUE.
On remand, the Examining Attorney denied Applicant’s Request for
Reconsideration, 8 TTABVUE 1-2, and the appeal was resumed, 9 TTABVUE, and is
now ready for decision.
II. Materials Attached to Applicant’s Appeal Brief
Applicant attached over 1,500 pages of materials to its appeal brief, 10 TTABVUE
25-1558, referring to those pages on its ESTTA cover sheet as Exhibits A-I. Id. at 1.
Near the end of her brief, the Examining Attorney argues that “[r]eviewing the record
makes it clear that much of this material had not been made of record previously,”
“objects to the submission of the Exhibits,” and “requests that the Board ignore all
materials attached to applicant’s appeal brief.” 12 TTABVUE 16. In its reply brief,
Applicant “asserts that the additional materials do not amount to any changes to the
record,” 13 TTABVUE 5, but states that the exhibits submitted with its appeal brief
“can be disregarded . . . as such materials were already made of record during
examination.” Id.
The Board strongly discourages the practice of attaching materials to briefs:
Parties to Board cases occasionally seem to be under the
impression that attaching previously-filed evidence to a
brief and citing to the attachments, rather than to the
original submission is a courtesy or a convenience to the
Board. It is neither. When considering a case for final
disposition, the entire record is readily available to the
panel. Because we must determine whether attachments
to briefs are properly of record, citation to the attachment
requires examination of the attachment and then an
attempt to locate the same evidence in the record developed

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during the prosecution of the application, requiring more
time and effort than would have been necessary if citations
directly to the prosecution history were provided.
In re Michalko, No. 85584271, 2014 WL2531202, at *1 (TTAB 2014). This case
presents a textbook example of the conundrum discussed in Michalko.32
We cannot determine on the face of the nine exhibits attached to Applicant’s brief
which exhibits are in the record and which are not. Applicant provides no help in that
regard, as its appeal brief merely cites the exhibits by letter and sometimes provides
a simple description of them, in two instances accompanied by hyperlinks. 10
TTABVUE 14-17, 19, 22. The Examining Attorney also provides no help in that
regard because notwithstanding her claim that “[r]eviewing the record makes it clear
that much of this material had not been made of record previously,” 12 TTABVUE
16, she does not identify the referenced material.
We have been saved from having to “attempt to locate the same evidence in the
record developed during the prosecution of the application, requiring more time and
effort than would have been necessary if citations directly to the prosecution history
were provided,” Michalko, 2014 WL 2531202, at *1, only by Applicant’s statement in
its reply brief that we can disregard the exhibits attached to its appeal brief. 13
TTABVUE 5. We will do so, and will consider only those materials made of record
32 After an appeal is ready for decision and is assigned to an authoring judge for a Board
panel, the authoring judge typically reviews the briefs as a first step in becoming familiar
with the assigned case, and then reviews the record. One hallmark of a helpful appeal brief
(indeed any brief) is its ability to direct the Board to the places in the record where evidence
supporting the legal arguments made in the brief can be found.

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prior to appeal, or on the remand of the application to the Examining Attorney
following appeal.
III. Analysis of Likelihood of Confusion Refusal
“The Trademark Act prohibits registration of a mark that so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant, to cause confusion [or] mistake, or to deceive.” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023) (cleaned up). Our determination
of the likelihood of confusion under Section 2(d) of the Trademark Act is based on an
analysis of all probative facts in the record that are relevant to the likelihood of
confusion factors set forth in In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361
(CCPA 1973) (“DuPont”). Charger Ventures, 64 F.4th at 1379. We consider each
DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg.
Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019).
“Two key factors in every Section 2(d) case are the first two factors regarding the
similarity or dissimilarity of the marks and the goods or services, 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.” DC Comics
v. Cellular Nerd LLC, No. 91246950, 2022 WL 17832492, at *10 (TTAB 2022)
(internal quotations and quotation marks omitted).
Applicant’s appeal brief argues that the Board should conclude that there is no
likelihood of confusion based on “significant differences between: (1) dissimilarity of
the marks in their entireties, (2) the goods and services [sic] identified by the marks;

Serial No. 98046428
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(3) the coexistence of similar marks on the register; and (4) the weakness of the Cited
Marks.” 10 TTABVUE 8.33 This argument implicates the key first two DuPont factors,
and the sixth factor, the “number and nature of similar marks in use on similar
goods.” DuPont, 476 F.2d at 1361.34
We will focus our analysis under Section 2(d) on the standard-character mark
BEEKEEPER for “alcoholic beverages except beers” shown in the cited ’401
Registration because we find it to be the cited mark that is most similar to Applicant’s
mark and its identified goods encompass those identified in the other two cited
registrations. If we find a likelihood of confusion as to that mark and the goods for
which it is registered, we need not find a likelihood of confusion as to the marks shown
in the cited ’046 and ’226 Registrations. In re Max Cap. Grp. Ltd., No. 77186166, 2010
WL 22358, at *2 (TTAB 2010).
A. Strength or Weakness of the Cited Mark
We begin with the sixth DuPont factor because the possible weakness of the cited
BEEKEEPER mark may affect the degree of similarity between the marks that is
required under the key first factor for confusion to be likely. Cf. Apex Bank v. CC
Serve Corp., 156 F.4th 1230, 1236 (Fed. Cir. 2025) (vacating the Board’s analysis
under the sixth DuPont factor “because reconsideration of the sixth DuPont factor
33 In its appeal brief, 10 TTABVUE 17, Applicant also alludes to the fourth DuPont factor,
the “conditions under which and buyers to whom sales are made, i. e. ‘impulse’ vs. careful,
sophisticated purchasing.” DuPont, 476 F.2d at 1361. We briefly discuss that factor below.
34 The claimed “coexistence of similar marks on the register,” 10 TTABVUE 8, refers to the
coexistence of the cited marks and is not associated with any particular DuPont factor, and
we discuss it separately below.

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may result in a different determination of the mark’s commercial strength or
weakness and affect the overall commercial impression.”); Heil Co. v. Tripleye GmbH,
No. 91277359, 2024 WL 4925901, at *17 (TTAB 2024) (“Because it affects the scope
of protection to which it is entitled, we commence by addressing the strength or
weakness of Opposer’s registered 3RD EYE mark.”).
The sixth DuPont 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.” Spireon, Inc. v. Flex Ltd., 71 F.4th 1355, 1362 (Fed. Cir. 2023)
(quoting DuPont, 476 F.2d at 1361 and citing Palm Bay Imps., Inc. v. Veuve Clicquot
Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 1373 (Fed. Cir. 2005)).
“There are two prongs of analysis for a mark’s strength under the sixth factor:
conceptual strength and commercial strength.” Id. (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. (citation and quotation
and quotation marks 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)).
1. Conceptual Weakness
Because the BEEKEEPER mark shown in the cited ’401 Registration “is
registered on the Principal Register, with no claim of acquired distinctiveness under

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Section 2(f), we presume it is inherently distinctive, i.e., that it is at worst suggestive
of the goods.” Heil Co., 2024 WL 4925901, at *18 (citing 15 U.S.C. § 1057(b)). 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)), because “third-party registrations
containing an element that is common to both . . . marks can show that that element
has ‘a normally understood and well-recognized descriptive or suggestive meaning.’”
Id. (quoting Jack Wolfskin Ausrustung Fur Draussen GmbH v. New Millenium
Sports, S.L.U., 797 F.3d 1363, 1374 (Fed. Cir. 2015)).
Applicant offers no third-party registrations of BEEKEEPER-formative marks to
show conceptual weakness, but instead argues that “there are numerous third-party
uses of BEEKEEPER/BEE KEEPER for wine and alcoholic beverages,” which
“demonstrate that BEEKEEPER/BEE KEEPER formative marks are conceptually
weak in the alcoholic beverage space, and thus, consumers are familiar with relying
on other elements in the marks to determine the source of the goods . . . .” 10
TTABVUE 21. We will consider Applicant’s third-party use evidence with respect to
the possible conceptual weakness of the BEEKEEPER mark shown in the ’401
Registration, as well as for its customary purpose of showing the commercial
weakness of the mark. See Heil Co., 2024 WL 4925901, at *21 (“The purpose of
introducing evidence of third-party marketplace use is ‘to show that customers have
become so conditioned by a plethora of such similar marks that customers ‘have been
educated to distinguish between different [such] marks on the bases of minute

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distinctions.”’) (quoting Omaha Steaks Int’l Inc. v. Greater Omaha Packing Co., 908
F.3d 1315, 1324 (Fed. Cir. 2018) (quoting Palm Bay, 396 F.3d at 1374) (internal
quotation omitted)).
Applicant offers evidence of use of ten marks containing or consisting of the words
Beekeeper or Bee Keeper, in the form of screenshots of pages from the following
websites:
• 1634 Meadery (1634meadery.com), which displays a “Beekeeper limited
edition special mead;”35
• Mount Rozier (mountrozier.co), which displays a 2022 Chenin Blanc wine
under the mark THE BEEKEEPER;36
• Bent Ladder (bentladder.com), which displays a Beekeeper “apple cider
fermented with local wildflower honey;”37
• Sanguis (sanguiswine.com), which displays the mark BEEKEEPER in
connection with what appears to be a white wine;38
• Cherry Republic (cherryrepublic.com), which displays the words “Bee
Keeper’s Cherry Cyser Can 4 pk;”39
• The Whistler (thewhistlerwhiskey.com), which displays a “Beekeeper’s
Select Irish Honey” whiskey;40
35 August 30, 2024 Response to Office Action at TSDR 95. The Board may take judicial notice
of dictionary definitions, including definitions from online dictionaries that exist in printed
format or have fixed regular editions. See, e.g., In re Nursecon, LLC, No. 88052194, 2024 WL
5265079, at *10 n.64 (TTAB 2024) (citation omitted). We take judicial notice that “mead” is
a “fermented beverage made of water and honey, malt, and yeast.” MERRIAM-WEBSTER
DICTIONARY (merriam-webster.com, last accessed on February 12, 2026).
36 August 30, 2024 Response to Office Action at TSDR 97-98.
37 Id. at TSDR 99.
38 Id. at TSDR 100.
39 Id. at TSDR 101. A “cyser” appears to be a type of mead. The page states that the product
is out of stock.
40 Id. at TSDR 103-05.

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• Celtic Honey (grandwinecellar.com), which displays a “Celtic Honey
Beekeeper’s Blend Honey Liqueur Blended With Irish Whiskey;”41
• Royal Meadery (royalmeadery.com), which displays a Beekeeper’s Bounty
mead;42
• Grimsby (grimsbyhollowmeadery.com), which displays a traditional mead
called “The Beekeeper;”43 and
• Fairport Brewing Company (fairportbrewing.com), which displays a
Beekeeper’s Secret Honeycomb mead.44
Six of the ten third-party marks are used in connection with mead or a similar
beverage, or cider, all of which contain honey, a beekeeper’s handiwork, as an
ingredient, and two others are used with honey-flavored spirits. Taken together,
these uses show that the word “beekeeper” may be suggestive of the contents of
certain specific alcoholic beverages, but it seems too big a stretch to view this evidence
as showing that the BEEKEEPER mark shown in the ’401 Registration is
conceptually weak for alcoholic beverages.
2. Commercial Weakness
As noted above, the customary purpose of introducing evidence of third-party use
is to show that consumers “have become so conditioned by a plethora of such similar
marks” that they have been “educated to distinguish between different [such] marks
on the bases of minute distinctions.” Heil Co., 2024 WL 4925901, at *21 (quotation
and quotation marks omitted).
41 Id. at TSDR 106.
42 Id. at TSDR 107.
43 Id. at TSDR 109.
44 Id. at TSDR 111.

Serial No. 98046428
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In assessing Applicant’s third-party use evidence, we bear in mind that the
Federal Circuit has held that the “probative value of third-party trademarks depends
entirely upon their usage.” Palm Bay, 396 F.3d at 1373 (citation omitted). Where “the
‘record includes no evidence of the extent of [third-party uses] . . . [t]he probative
value of this evidence is thus minimal.’” Id. (quoting Han Beauty, Inc. v. Alberto-
Culver Co., 236 F.3d 1333, 1338 (Fed. Cir. 2001) (emphasis in bold here in italics in
Palm Bay)). In Palm Bay, which involved the plaintiff’s marks VEUVE CLICQUOT
PONSARDIN, VEUVE CLICQUOT, VEUVE CLICQUOT PONSARDIN and design,
THE WIDOW, and LA VIUDA for champagne, the Federal Circuit found
unpersuasive the applicant’s evidence of “five different alcoholic beverages that use
the term VEUVE” that “at various points of time appeared in an industry trade
publication, the Beverage Media Guide, which lists all beverage products in the wine
and spirits categories sold by wholesalers to restaurants and retail stores in New
York State,” id., and the applicant’s evidence, obtained by its private investigator,
that “six New York stores displayed for sale a VEUVE DE VERNAY sparkling wine
as well as internet web sites and restaurant lists.” Id. at 1374.
On its face, the third-party use evidence here is even less potent than the evidence
found wanting in Palm Bay because here we have only “snapshots” of ten websites
displaying mead, cider, wine, or honey-flavored spirits under a BEEKEEPER- or BEE
KEEPER-formative mark, and no information regarding the number of visitors to the
sites, the duration and extent of sales of the goods through the sites themselves, or
through retail outlets, or other information that would show the extent of consumer

Serial No. 98046428
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exposure to the third-party marks. In the absence of any such evidence, they have
little, if any, probative value in diminishing the commercial strength of Opposer’s
mark.
Subsequent to its decision in Palm Bay, the Federal Circuit has held that where
there is “voluminous” or “extensive” evidence of third-party marks, the specifics of
their uses need not be proven to make the evidence probative of commercial weakness
because such evidence is “powerful on its face.” Juice Generation, 794 F.3d at 1339 &
n.1 (considering at least 26 different third-party marks); Jack Wolfskin, 797 F.3d at
1373 & n.2 (considering at least 14 different third-party marks). We do not find that
Applicant’s ten third-party BEEKEEPER- and BEE KEEPER-formative marks for
mead, cider, wine, and honey-flavored spirits constitute “voluminous” or “extensive”
evidence that is “powerful on its face” and that would permit us to infer that
“customers have become so conditioned by a plethora of such similar marks that
customers ‘have been educated to distinguish between different [such] marks on the
bases of minute distinctions.’” Omaha Steaks, 908 F.3d at 1324 (quoting Palm Bay,
396 F.3d at 1374). The sixth DuPont factor is neutral in our analysis of the likelihood
of confusion, and we will accord the BEEKEEPER mark shown in the cited ’401
Registration “the normal scope of protection to which inherently distinctive marks
are entitled.” Iron Balls Int’l Ltd. v. Bull Creek Brewing, LLC, No. 92079099, 2024
WL 2844425, at *15 (TTAB 2024) (citation omitted).

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B. Similarity or Dissimilarity of the Marks
Under the first DuPont factor, “we consider the ‘similarity or dissimilarity of the
marks in their entireties as to appearance, sound, connotation and commercial
impression.’” In re Ye Mystic Krewe of Gasparilla, No. 90522364, 2025 WL 2953731,
at *4 (TTAB 2025) (quoting DuPont, 476 F.2d at 1361). “Similarity in any one of these
elements may be sufficient to find the marks confusingly similar.” Sage Therapeutics,
Inc. v. Sageforth Psych. Servs., LLC, No. 91270181, 2024 WL 1638376, at *5 (TTAB
2024) (quoting In re Inn at St. John’s LLC, No. 87075988, 2018 WL 2734893, at *5
(TTAB 2018) (citation omitted), aff’d mem., 777 F. App’x 516 (Fed. Cir. 2019)); accord
Krim-Ko Corp. v. Coca-Cola Bottling Co., 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.”) (citation omitted).
“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.” Sage Therapeutics, 2024 WL 1638376, at *5 (quoting Coach
Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir 2012)). The
“marks ‘must be considered . . . in light of the fallibility of memory’ and ‘not on the
basis of side-by-side comparison.’” In re St. Helena Hosp., 774 F.3d 747, 751 (Fed. Cir.
2014) (quoting San Fernando Elec. Mfg. Co. v. JFD Elecs. Components Corp., 565
F.2d 683, 685 (CCPA 1977)). “The focus is on the recollection of the average
purchaser, who normally ‘retains a general rather than a specific impression of

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marks.’” Sage Therapeutics, 2024 WL 1638376, at *5 (quoting In re i.am.symbolic, llc,
No. 85916778, 2018 WL 3993582, at *4 (TTAB 2018) (citations omitted)). The average
purchaser here is a consumer of coffee not infused with alcohol, a beverage that is
widely consumed by the general public in the United States.45
The cited mark is BEEKEEPER in standard characters and Applicant’s composite
mark contains the words BEE KEEPER in all capital letters in a stacked presentation
over the word Coffee. Applicant argues that “[t]he fact that two marks share common
elements does not automatically lead to a finding of a likelihood of confusion.” 10
TTABVUE 9 (citation omitted) (emphasis supplied by Applicant).46 According to
Applicant, the Examining Attorney “whittles down the marks into their constituent
parts focusing on the shared variations of the word BEEKEEPER / BEE KEEPER
and continues to materially ignore the differences in the overall commercial
impression between the marks,” id. at 9-10, and “[b]y doing so, the Examining
Attorney has improperly dissected the marks.” Id. at 10.
Applicant further argues that
[a]lthough Applicant’s Mark and Cited Marks include the
wording BEEKEEPER / BEE KEEPER, the additional
elements in Applicant’s Mark distinguishes it from the
Cited Marks. For instance, Applicant’s Mark spaces out the
wording BEE KEEPER, adds the wording “COFFEE,” and
includes a design of honey dripping off of the letter “K.” All
of these elements affect the appearance, sound, and
45 A Wikipedia entry made of record by Applicant states that an April 2024 survey by the
National Coffee Association showed that coffee consumption had reached a 20-year high, with
67% of U.S. adults reporting drinking coffee in the past day. August 30, 2024 Response to
Office Action at TSDR 44.
46 Because we are focusing on the standard-character BEEKEEPER mark shown in the ’401
Registration, we will not summarize arguments directed specifically to the other cited marks.

Serial No. 98046428
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commercial impression of Applicant’s Mark. As the
Examining Attorney is aware, Applicant’s Goods contain
honey. Thus, the additional elements in Applicant’s Mark
emphasize to the consumer the Applicant’s Goods are
coffee-based beverages that contain honey.
Id.
Applicant also argues that “[t]he Examining Attorney argues that the design in
Applicant’s Mark is insignificant because the Cited Marks are in standard character
form and therefore can be presented in any stylization, including that of the
Applicants [sic],” that “[t]his conclusion improperly implies that the design elements
in Applicant’s Mark are less significant by virtue of the Cited Marks being in
standard character form and blinds the Examining Attorney from evaluating the
overall differences in commercial impressions between the marks,” and that “the
Examining Attorney continues to discount the significance of the wording ‘COFFEE’
in Applicant’s Mark because it is generic wording and therefore not source
identifying.” Id.
Applicant concludes as follows:
In this case, the Examining Attorney has not given full and
proper consideration to the marks as a whole. When
viewing Applicant’s Marks and the Cited Marks as
required under a likelihood of confusion analysis, the
additional elements in the Applicant’s Mark and in the
Cited Marks render them dissimilar in appearance, sound,
meaning, and overall commercial impressions. Thus, the
Cited Marks are distinct from Applicant’s Mark, and the
scales weigh in finding that there is no likelihood of
confusion.
Id. at 13.

Serial No. 98046428
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The Examining Attorney responds that Applicant’s “mark, BEE KEEPER
COFFEE, is highly similar to registrants’ marks, BEEKEEPER and BEEKEEPER’S
BLEND” because the “marks at issue all share the similar terms BEE KEEPER and
BEEKEEPER.” 12 TTABVUE 4. The Examining Attorney further argues that “BEE
KEEPER and BEEKEEPER appear first in the respective marks at issue,” id. at 5;
that “the registered mark(s) appears in standard character form while the applied-
for mark appears in stylized lettering form [and] [a] mark in typed or standard
characters may be displayed in any lettering style,” id. (citation omitted), and “a mark
presented in stylized characters and/or with a design element generally will not avoid
likelihood of confusion with a mark in typed or standard characters because the word
portion could be presented in the same manner of display,” id. at 6 (citations omitted);
that “BEE KEEPER and BEEKEEPER is [sic] confusingly similar because they are
identical in sound and virtually identical in appearance,” id.; and that the words BEE
KEEPER are the dominant portion of Applicant’s mark because BEE KEEPER
appears first in Applicant’s mark and because it occupies a central position in the
mark, and because the design element in the mark could be viewed as a part of the
font of the word KEEPER. Id. at 6-7. The Examining Attorney concludes that
“[w]hether BEEKEEPER is the dominant word in the marks at issue is the crux of
the matter.” Id. at 10.
We begin with the issue that the Examining Attorney claims to be the “crux” of
the similarity analysis, the identification of the dominant portion of Applicant’s mark.
For ease of reference in following our analysis, we reproduce Applicant’s mark below:

Serial No. 98046428
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Marks must be considered in their entireties, but “in articulating reasons for
reaching a conclusion on the issue of confusion, there is nothing improper in stating
that, for rational reasons, more or less weight has been given to a particular feature
of a mark, provided the ultimate conclusion rests on consideration of the marks in
their entireties.” In re Detroit Athletic Co., 903 F.3d 1297, 1305 (Fed. Cir. 2018)
(quoting In re Nat’l Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985)).
“In marks ‘consisting of words and a design, the words are normally accorded
greater weight because they are likely to make a greater impression upon purchasers,
to be remembered by them, and to be used by them to request the goods.’” Sabhnani
v. Mirage Brands, LLC, No. 92068086, 2021 WL 6072822, at *16 (TTAB 2021)
(quoting In re Aquitaine Wine USA, LLC, No. 86928469, 2018 WL 1620989, at *2
(TTAB 2021) (citing In re Viterra Inc., 671 F.3d 1358, 1362 (Fed. Cir. 2012) (internal
citation omitted)). “The verbal portion of a word and design mark ‘likely will appear
alone when used in text and will be spoken when requested by consumers.’” Id.
(quoting Viterra, 671 F.3d at 1362). This principle is nicely illustrated by the page
from Applicant’s website at beekeepercoffee.com reproduced below, which displays
Applicant’s composite mark, but refers to Applicant in text as “Beekeeper Coffee” or
just “Beekeeper,” displaying “Beekeeper” as one word in either all capital letters or
with initial capitalization of the letter “B” in the word:

Serial No. 98046428
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47
The word “Coffee” that appears beneath the words BEE KEEPER in much smaller
script in Applicant’s mark is, as Applicant admits, “generic wording and therefore not
source identifying,” 10 TTABVUE 9,48 and has been disclaimed. We find that the
“mark is dominated by the word[s] [BEE KEEPER], which [are] the first word[s] in
the mark and the only one[s] with source-identifying significance.” Sabhnani, 2021
WL 6072822, at *17 (citation omitted). We turn now to the required comparison of
the marks in their entireties, giving greater weight in that comparison to the words
BEE KEEPER in Applicant’s mark than to the design element and the disclaimed
word “Coffee.”
47 August 30, 2024 Response to Office Action at TSDR 23.
48 As Applicant puts it in its description of its mark, in the phrase “BEE KEEPER COFFEE,”
the words “BEE KEEPER” are in a larger font and set above ‘COFFEE’ . . . .”

Serial No. 98046428
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With respect to appearance, the BEEKEEPER mark shown in the cited ’401
Registration is in standard characters, and “could be used in any typeface, color, or
size, including the same stylization actually used or intended to be used by
[Applicant], or one that minimizes the differences or emphasizes the similarities
between the marks.” Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., No. 91194148,
2015 WL 5316485, at *8 (TTAB 2015) (citing Citigroup Inc. v. Cap. City Bank Grp.
Inc., 637 F.3d 1344, 1353 (Fed. Cir. 2011) (the “registrant is entitled to depictions of
the standard character mark regardless of font style, size, or color, not merely
‘reasonable manners’ of depicting its standard character mark.”)). Accordingly, we
must assume that the cited BEEKEEPER mark could be displayed in the same font
and size in which the words BEE KEEPER appear in Applicant’s mark.49 Especially
in that depiction, but also when BEEKEEPER is depicted simply in block letters, the
cited BEEKEEPER mark and Applicant’s composite mark are quite similar in
appearance.
With respect to sound, the word BEEKEEPER that comprises the cited mark, and
that appears as BEE KEEPER in Applicant’s mark, is a known word in English
meaning “a person who raises bees,”50 and would be pronounced identically when the
marks are verbalized. Applicant’s mark also contains the word “coffee,” but the Board
49 “[I]llustrations of the [cited] mark as actually used may assist the T.T.A.B. in visualizing
other forms in which the mark might appear,” Citigroup, 637 F.3d at 1353, and a page from
the website of the owner of the cited mark made of record by Applicant shows the
BEEKEEPER mark in a stylized font. January 15, 2025 Request for Reconsideration at
TSDR 27.
50 MERRIAM-WEBSTER DICTIONARY (merriam-webster.com, last accessed on February 12,
2026).

Serial No. 98046428
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has recognized the “‘penchant of consumers to shorten marks.’” Iron Balls, 2024 WL
2844425, at *25 (quoting In re Bay State Brewing Co., No. 85826258, 2016 WL
1045677, at *3 (TTAB 2016) (citing In Abcor Dev. Corp., 588 F.2d 811, 815 (CCPA
1978) (Rich, J., concurring) (“the users of language have a universal habit of
shortening full names from haste or laziness or just economy of words.”)). As shown
above, Applicant’s website states in bold capital letters that “BEEKEEPER IS MORE
THAN JUST A COFFEE BRAND - IT’S A WAY OF LIFE,” and the copyright notice
on Applicant’s website identifies the copyright owner simply as “Beekeeper,”51 and
we find that it is likely that consumers would verbalize Applicant’s mark simply as
“Bee Keeper,” which would sound identical to the cited mark. But even if consumers
did not engage in the “penchant to shorten marks,” and verbalized Applicant’s mark
as “Bee Keeper Coffee,” the mark would sound very similar to “Beekeeper” alone.
Finally, with respect to meaning, as noted above, Applicant claims that the
inclusion in its mark of the word “Coffee” and a design that it claims shows dripping
honey “emphasize[s] to the consumer the Applicant’s Goods are coffee-based
beverages that contain honey.” 10 TTABVUE 10. But both Applicant’s mark and the
cited mark refer to “a person who raises bees,” and Applicant offers no evidence that
on the face of the respective marks, BEE KEEPER would have one meaning in
Applicant’s mark for coffee, and a second and different meaning in the cited mark
BEEKEEPER for alcoholic beverages. See In re Embiid, No. 88202890, 2021 WL
2285576, at *9 (TTAB 2021).
51 August 30, 2024 Response to Office Action at TSDR 24.

Serial No. 98046428
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We find that the marks are similar in all means of comparison. The first DuPont
factor supports a conclusion that confusion is likely. Naterra, Inc. v. Bensalem, 92
F.4th 1113, 1119 (Fed. Cir. 2024).
C. Similarity or Dissimilarity of the Goods, Channels of Trade, and
Classes of Consumers
The second DuPont factor “considers ‘[t]he similarity or dissimilarity and nature
of the goods or services as described in an application or registration . . . .” Detroit
Athletic Co., 903 F.3d at 1306. “This factor considers whether ‘the consuming public
may perceive [the goods] as related enough to cause confusion about the source or
origin of the goods . . . .’” St. Helena Hosp., 774 F.3d at 752 (quoting Hewlett-Packard
Co. v. Packard Press, Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002)). “In analyzing the
[goods], the Board considers ‘[t]he similarity or dissimilarity and nature of the [goods]
as described in an application or registration.’” In re OSF Healthcare Sys., No.
88706809, 2023 WL 6140427, at *4 (TTAB 2023) (quoting Embiid, 2021 WL 2285576,
at *10).
The goods “‘need not be identical or even competitive to find a likelihood of
confusion.’” Id. (quoting In re Country Oven, Inc., No. 87354443, 2019 WL 6170483,
at *2 (TTAB 2019)).52 “They need only be ‘related in some manner and/or if the
circumstances surrounding their marketing are such that they could give rise to the
52 The “Examining Attorney need not prove, and we need not find, similarity as to each [good]
listed in the description of [goods]” in Class 30 in the application. OSF Healthcare, 2023 WL
6140427, at *5 (citation omitted). “‘[I]t is sufficient for finding a likelihood of confusion if
relatedness is established for any [good] encompassed by the identification of [goods] within
a particular class in the application.” Id. (citations omitted). The Examining Attorney focuses
on the goods identified as “coffee” in the application.

Serial No. 98046428
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mistaken belief that [they] emanate from the same source.” Id. (quoting Country
Oven, 2019 WL 6170483, at *2 (quoting Coach Servs., 668 F.3d at 1369 (internal
quotation omitted)).
The relatedness of goods or services may be established based on a variety of
evidence, including (1) the language of the involved identifications of goods or
services, which may show, on the face of the identifications, that the goods or services
are literally or legally identical, or are otherwise intrinsically related, and (2)
evidence of third-party uses or registrations, which may show that the identified
goods or services are commonly offered by the same entity under the same mark, or
are otherwise related. Id.
The goods identified in the cited ’401 Registration are “alcoholic beverages except
beers,” while the goods identified in the application are “coffee; coffee-based
beverages; all of the foregoing goods not infused with alcohol, not used as an
ingredient in alcoholic beverages, and not sold in connection with alcoholic
beverages.”53
Applicant correctly notes that the goods are not inherently related based on the
language of the respective identifications, 10 TTABVUE 14,54 and argues that
53 Applicant characterizes the language “all of the foregoing goods not infused with alcohol,
not used as an ingredient in alcoholic beverages, and not sold in connection with alcoholic
beverages” as a “limitation to the trade channels” for the goods, 10 TTABVUE 15, rather than
as a limitation on the nature of the goods per se. Applicant claims that this limitation
“demonstrates that Applicant’s goods are not sold with or used in connection with the Cited
Marks’ goods and renders the Examining Attorney’s internet evidence unpersuasive.” Id. at
15-16. On its face, the phrase “not infused with alcohol” is a limitation on the nature of the
goods. We discuss the remaining language below in connection with the third DuPont factor.
54 Applicant argues that the goods are qualitatively “different in nature as coffee is derived
from roasted coffee beans where the ground beans are brewed into a stimulating beverage,

Serial No. 98046428
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[t]o demonstrate a relatedness between coffee and alcohol,
the Examining Attorney provided internet evidence from
distilleries and wineries. However, this evidence does not
provide an accurate picture of how consumers typically
encounter and purchase alcohol and coffee. Most
consumers buy their alcohol and coffee from supermarkets.
. . . . Clearly, the majority of consumers do not to purchase
their coffee beans, coffee grounds, or brewed coffee from
wineries and distilleries.
Id. at 15.
Applicant further argues that “coffee and alcohol are found in different
departments in a grocery store,” that “[a]lcohol has its own section, which includes
wine, beer, and liquor, and is separate from coffee,” and that “the goods at issue would
not be found together in the same aisles and would not be encountered at the same
time.” Id. According to Applicant, “consumers would not believe that coffee and
alcohol emanate from a common source.” Id.
With respect to the Examining Attorney’s third-party use and registration
evidence discussed below, Applicant argues that
the Examining Attorney continues to overlook the fact that
wineries and distilleries are not the normal trade
channels for alcohol and coffee. Sixteen examples of coffee
and alcoholic beverages except beer offered under the same
mark are unconvincing for purposes of showing that these
goods are sufficiently related such that consumers would
expect them to emanate from the same source because
while wine is a fermented beverage derived from grapes and other alcohol is a fermented or
distilled beverage derived from fruits or grains,” that “the goods at issue are produced using
different processes,” and that “there is a federal age requirement for drinking and purchasing
alcohol, which is 21 years old or older that is not present when purchasing coffee, coffee
grounds, or brewed coffee.” 10 TTABVUE 14. The involved goods are produced using different
ingredients and methods, and are subject to different government regulations, but the “issue
is not whether purchasers would confuse the goods, but rather whether there is a likelihood
of confusion as to the source of these goods.” In re Samsung Display Co., No. 90502617, 2024
WL 3451873, at *3 (TTAB 2024).

Serial No. 98046428
- 28 -
wineries and distilleries are not the normal and common
trade channels for coffee and alcoholic beverages except
beer and because in the United States, there are 11,654
active wineries and 3,069 active distilleries.
. . .
Clearly, sixteen examples out of 14,000 businesses are
insufficient to show that it is common industry practice for
wineries and distilleries to sell coffee, especially when
fourteen of the sixteen businesses seemingly do not sell
their products nationwide and are not widely known by
consumers. While the Applicant recognizes that the
Examining Attorney has limited resources, a selective
evaluation of just sixteen examples out of 14,000 business
is not enough to support the Examining Attorney’s
evidentiary burden and find that the evidence is sufficient
to prove a likelihood of confusion. Rather, it can only, at
best, support a mere possibility of confusion.
Id. at 16 (emphasis supplied by Applicant).
Applicant further argues that “consumers visiting a specific distillery or winery
are only going to encounter one brand at that location and will not have the chance
to distinguish between goods and brands,” id. at 16-17, and that “[c]onsumers expect
various ‘branded’ products with that specific brand when visiting a winery, such as
branded candy, clothing, candles, etc.,” which Applicant claims “are generally
promotional items and not necessarily items consumers associate as a brand of a
specific product” Id. at 17.
Applicant concludes that “[t]he Examining Attorney’s evidence fails to show that
Applicant’s goods and the goods of the Cited Marks are related in some manner or
that they could be encountered by the similar purchasers in such a way that there
would be confusion as to the source of the goods,” and that “ this Dupont factor weighs
in favor of finding that there is no likelihood of confusion.” Id.

Serial No. 98046428
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The Examining Attorney responds that Applicant’s “coffee goods are
unquestionably closely related to registrants’ alcohol goods.” 12 TTABVUE 11. She
points to pages from the websites of 16 companies, and 15 use-based third-party
registrations, to show that the same company offers coffee and alcoholic beverages
under the same mark. Id. at 11-13. She also responds to Applicant’s arguments
regarding the absolute number of third-party uses and registrations, the sales of the
goods through wineries and distilleries, and the alleged status of coffee as a collateral
good when it is sold by wineries and distilleries. Id. at 13-15.
In assessing the Examining Attorney’s Internet evidence, we must make a
threshold determination as to exactly what goods are offered through the respective
websites. In that regard,
we acknowledge that [goods] may not be explicitly
described at all, or may be described in colloquial language
that does not track the technical language of acceptable
identifications of goods and services in applications and
registrations, including those involved here. In such
instances, we must determine the nature of the [goods] that
are offered, and decide whether they fall within the full
scope of the language in the involved identifications.55
OSF Healthcare, 2023 WL 6140427, at *10 (citations omitted).
55 As noted above, Applicant’s identification of goods contains language that its coffee is “not
infused with alcohol,” which is a limitation on the ingredients of Applicant’s coffee. Although
Applicant admits that “consumers are most likely unaware of limitations in applications and
registrations,” 10 TTABVUE 16, Applicant argues that this limitation “renders the
Examining Attorney’s internet evidence unpersuasive.” Id. We take judicial notice that the
verb “infuse” means “to steep in liquid (such as water) without boiling so as to extract the
soluble constituents or principles.” MERRIAM-WEBSTER DICTIONARY (merriam-webster.com,
last accessed on February 12, 2026). A few of the third-party users expressly describe their
coffees as being “infused” with bourbon or wine. We discuss the probative value of these uses
below.

Serial No. 98046428
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The third-party uses include pages from the following websites:
• Buffalo Trace Distillery (buffalotracedistillery.com), which offers bourbon
and bourbon-infused coffee;56
• A. Smith Bowman Distillery (asmithbowman.com), which offers bourbon
barrel-aged coffee, and spirits;57
• Cape Charles Distillery (ccdesva.distilleryspirits.com), which offers coffee,
and whiskey and vodka;58
• Elijah Craig Distillery (elijahcraig.distilleryspirits.com), which offers
bourbon barrel-aged coffee and bourbon;59
• Evan Williams (store.evanwilliams.com), which offers bourbon barrel-aged
coffee and bourbon;60
• Gervasi Vineyard (gervasivineyard.com), which offers spirits and coffee
(styled “Caffe”);61
• McMenamins Distilleries & Spirits (mcmenamins.com), which offers spirits
and coffees;62
• Taconic Distillery (taconicdistillery.com), which offers spirits and French
roast coffee;63
• Jack Daniel Distillery (jackdanielscoffee.com and jackdaniels.com), which
offers Tennessee whiskey-infused non-alcoholic coffee, and Tennessee
whiskey and other alcoholic beverages;64
56 March 6, 2024 Office Action at TSDR 20-28.
57 Id. at TSDR 29-32.
58 Id. at TSDR 49-50.
59 Id. at TSDR 51-56.
60 Id. at TSDR 57-61.
61 Id. at TSDR 62-71.
62 Id. at TSDR 73-77.
63 Id. at TSDR 78-81.
64 Id. at TSDR 82-140.

Serial No. 98046428
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• Cherry Republic (cherryrepublic.com), which offers wine and coffee;65
• Red 55 Winery (red55winery.com), which offers wine and coffee;66
• Hoodsport Winery (hoodsportwine.com), which offers wine and coffee;67
• Trump Winery (trumpwinery.com), which offers wine and coffee;68
• Well Hung Vineyard & Restaurant (wellhungvineyard.com), which offers
wine and wine-infused coffee;69 and
• MJA Vineyards (mjavineyards.com), which offers wine and coffee.70
The third-party registrations include the following:71
• Registration No. 7064145, which covers “coffee” and “alcoholic beverages
except beers;”72
• Registration No. 6910936, which covers “coffee” and “wines;”73
• Registration No. 6295653, which covers “coffee” and “alcoholic beverages
except beers;”74
65 Id. at TSDR 141-48. As discussed above, Applicant offered this winery as a third-party user
of a Beekeeper mark supporting its contention that the term lacks strength in the industry.
66 Id. at TSDR 149-53.
67 Id. at TSDR 154-56.
68 September 17, 2024 Final Office Action at TSDR 9-12.
69 Id. at TSDR 13-21.
70 Id. at TSDR 22-26.
71 As discussed above, Applicant’s identification of goods states that its coffee is “not infused
with alcohol.” In considering the goods identified as “coffee” in the third-party registrations,
“[j]ust as we must consider the full scope of the goods and services as set forth in the
application and registration under consideration, we must consider the full scope of the goods
and services described in a third-party registration.” Country Oven, 2019 WL 6170483, at
*5. Accordingly, the “full scope” of the goods identified as “coffee” in the third-party
registrations includes coffee that is “not infused with alcohol.”
72 February 28, 2025 Denial of Request for Reconsideration at TSDR 33-34.
73 Id. at TSDR 35-36.
74 Id. at TSDR 37-38.

Serial No. 98046428
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• Registration No. 5204493, which covers “coffee” and “wines;”75
• Registration No. 6108002, which covers, inter alia, “coffee,” and “spirits and
liqueurs;”76
• Registration No. 1828418, which covers “coffee” and “wine;”77
• Registration No. 6092267, which covers “coffee” and “alcoholic beverages
except beers;”78
• Registration No. 6695501, which covers “coffee,” and “whiskey; wine;
distilled spirits;”79
• Registration No. 4489132, which covers “coffee” and “alcoholic beverages
except beers;”80
• Registration No. 6629289, which covers “coffee” and “wine;”81
• Registration No. 7263467, which covers “coffee,” and “wine” and “distilled
liquor;”82
• Registration No. 7263930, which covers “coffee” and “alcoholic beverages
except beers,” and various specific alcoholic beverages;83
• Registration No. 6583871, which covers “coffee” and “wine;”84
• Registration No. 6468799, which covers “coffee” and “wine;”85 and
75 Id. at TSDR 39-40.
76 Id. at TSDR 41-42.
77 Id. at TSDR 43-44.
78 Id. at TSDR 45-46.
79 Id. at TSDR 47-48.
80 Id. at TSDR 49-50.
81 Id. at TSDR 51-52.
82 Id. at TSDR 53-54.
83 Id. at TSDR 55-56.
84 Id. at TSDR 57-58.
85 Id. at TSDR 59-60.

Serial No. 98046428
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• Registration No. 2297069, which covers “coffee,” and “wines” and
“liqueurs.”86
There are six additional relevant third-party registrations in the record courtesy
of Applicant’s submission, on its request for remand, of portions of the file histories
of its second application Serial No. 98679623 to register BEE KEEPER in standard
characters for “Coffee; Coffee based beverages; Coffee beans,” and portions of the file
history of the Trinity Bay Application. During prosecution of Applicant’s application
Serial No. 98679623, a different examining attorney made of record the following
relevant third-party registrations:
• Registration No. 6782722, which covers “coffee” and “Alcoholic beverages
except beer;”87
• Registration No. 6084703, which covers “coffee,” and “Wines; Aperitifs;
Prepared alcoholic cocktails; Alcoholic cocktail mixes;”88
• Registration No. 7263468, which covers “coffee,” and “wine” and “distilled
liquor;”89
• Registration No. 6247638, which covers “coffee” and “wine;”90 and
• Registration No. 5856450, which covers “coffee” and “Alcoholic beverages,
except beer.”91
During prosecution of the Trinity Bay Application, a third examining attorney made
of record Registration No. 6804907, which covers “coffee” and “wines.”92
86 Id. at TSDR 61-62.
87 6 TTABVUE 36-37 (February 12, 2025 Office Action (Serial No. 98679623)).
88 Id. at 38-40.
89 Id. at 42-43.
90 Id. at 48-49.
91 Id. at 50-51.
92 Id. at 176-79.

Serial No. 98046428
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At the outset of our analysis, we reject Applicant’s argument that “just sixteen
examples out of 14,000 business is not enough to support the Examining Attorney’s
evidentiary burden and find that the evidence is sufficient to prove a likelihood of
confusion.” 10 TTABVUE 16. The Federal Circuit has never required any particular
quantum of third-party use and registration evidence to establish relatedness,
holding simply that “evidence, such as whether a single company sells the goods and
services of both parties, if presented, is relevant to a relatedness analysis . . . .”
Hewlett-Packard, 281 F.3d at 1267.93 We do not read the court’s reference in Hewlett-
Packard to a “single company” to mean that if only one third party sells both involved
goods or services, that use is enough to show relatedness, but rather to describe a
category of evidence involving the sale of the involved goods or services by
the same company, in which one use may nevertheless be at least “relevant to a
relatedness analysis.” Id. The salient point is that in Hewlett-Packard and its
progeny, the Federal Circuit has never specified that any particular number of such
uses is required to show relatedness.
We begin with the Examining Attorney’s third-party registration evidence. “As a
general proposition, third-party registrations that cover goods . . . from both the cited
registration and an Applicant’s application are relevant to show that the goods . . .
are of a type that may emanate from a single source under one mark.” Country Oven,
2019 WL 6170483, at *5 (citations omitted). The 21 third-party registrations in the
93 By contrast, as discussed above, where third-party uses are offered to show the commercial
weakness of a mark without proof of the “particulars” of such uses, the Federal Circuit has
held that “voluminous” or “extensive” evidence of such uses is required.

Serial No. 98046428
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record that cover the involved goods are owned by 19 separate entities, and “are
sufficient in both quality and quantity to provide a reasonable predicate supporting
the Examining Attorney’s position on relatedness and shift the burden to Applicant
to rebut the evidence with competent evidence of its own.” Id. (discussing 10 third-
party registrations) (citation omitted).
Turning next to the 15 third-party uses of marks for both coffee and wine or
spirits, we note that they include two uses that identify the users’ coffee as “bourbon-
infused” or “whiskey-infused,” one use that identifies the user’s coffee as “wine-
infused,” and three uses that describe the users’ coffee as “bourbon barrel-aged.”
Because Applicant’s identification of goods expressly limits its goods to “coffee” that
is “not infused with alcohol,” the three third-party uses that involve coffee that is
infused with bourbon or wine are not relevant to our relatedness analysis.
The meaning of the phrase “bourbon-barrel aged coffee” is less clear, but it appears
to involve green coffee beans that have “aged” inside barrels that were previously
used to age bourbon in order to absorb the flavor of the bourbon. That process may
not literally meet the definition of the word “infuse,” but the principle appears to be
the same, and we find that these “bourbon-barrel aged coffees” are also not relevant
to our relatedness analysis. When these six total uses are excluded, there are nine
remaining third-party uses that involve both non-alcohol infused coffee, and spirits
or wines. We find that this evidence “bolsters our finding of relatedness” based on the
third-party registrations discussed above. Country Oven, 2019 WL 6170483, at *6
(discussing 11 third-party uses).

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We find that, taken together, the nine third-party uses and 19 separately-owned
third-party registrations are sufficient to show that non-alcohol infused coffee and
one or more of the goods encompassed within the “alcoholic beverages except beer”
identified in the ’401 Registration are related goods. The second DuPont factor
supports a conclusion that confusion is likely.
The third DuPont factor considers “the similarity or dissimilarity of established,
likely-to-continue trade channels.” Detroit Athletic Co., 903 F.3d at 1308 (quoting
DuPont, 476 F.2d at 1361). Applicant claims that the language in its identification of
goods stating that its “coffee” and “coffee-based beverages” are “not infused with
alcohol, not used as an ingredient in alcoholic beverages, and not sold in connection
with alcoholic beverages” is a “limitation to the trade channels” for the goods that
“further demonstrates that Applicant’s goods are not sold with or used in connection
with the Cited Marks’ goods and renders the Examining Attorney’s internet evidence
unpersuasive.” 10 TTABVUE 15-16. We disagree.94
The purported limitations to coffee “not used as an ingredient in alcoholic
beverages” and “not sold in connection with alcoholic beverages” are meaningless
because while Applicant itself does not sell alcoholic beverages, it cannot control how
its coffee is used by sellers or consumers of alcoholic beverages, or whether its coffee
is sold “in connection with alcoholic beverages” by retail customers. For example,
Applicant’s coffee could be mixed by a consumer with Irish whiskey to create an “Irish
94 As discussed above, the language “not infused with alcohol” is a limitation on the nature of
Applicant’s goods, not the trade channels in which, or the consumers to which, the goods are
sold.

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coffee.” These purported limitations “do[ ] not . . . limit the goods ‘with respect to
either trade channels or class of purchasers’ . . . or . . . ‘represent that the goods will
be marketed in any particular, limited way, through any particular, limited trade
channels, or to any particular class of customers.’” In re i.am.symbolic, llc, 866 F.3d
1315, 1326 (Fed. Cir. 2017) (quoting In re i.am.symbolic, llc, No. 85044494, 2015 WL
6746543, at *3 (TTAB 2015)).
Applicant concedes that “the goods at issue can be purchased from the same store,”
10 TTABVUE 15, and indeed argues that “[m]ost consumers buy their alcohol and
coffee from supermarkets.” Id. The record shows that the relevant channels of trade
include, at a minimum, supermarkets and the brick-and-mortar and online stores of
distilleries and wineries,95 and that consumers of spirits and wine also consume coffee
not infused with alcohol. The third DuPont factor supports a conclusion that
confusion is likely.96
95 The fact that non-alcohol infused coffee and alcoholic beverages may be purchased in what
Applicant calls “supermarkets” does not make the goods related for purposes of the second
DuPont factor, see, e.g., Inter IKEA Sys. B.V. v. Akea, LLC, No. 91196527, 2014 WL 1827031,
at *10 (TTAB 2014) (citations omitted), but the record shows that the involved goods are sold
by the same companies under the same marks, and that the channels of trade, including what
Applicant calls supermarkets, overlap.
96 As noted above, Applicant briefly alludes to the fourth DuPont factor, arguing that “coffee
is typically a low-cost, frequently purchased item, often bought on impulse,” while wine “is a
considered purchase, especially in mid- to high-end markets.” 10 TTABVUE 17. Applicant
makes this argument to show that in the case of “similar goods sold through wineries, the
sophistication of the consumer in such places reduces the likelihood of confusion,” id., but we
are considering goods identified as “alcoholic beverages except beer,” which cover more than
just wine, and there is no exclusion in the involved identification of low-priced alcoholic
beverages, which forecloses Applicant’s argument for sophisticated purchasing based on
price. Aquitaine Wine, 2018 WL 1620989, at *9. In any event, in the context of the forward-
confusion theory pursued by the Examining Attorney, in which the issue is the degree of care
of consumers of Applicant’s goods, Applicant’s admission that coffee is “often bought on
impulse” makes confusion more, not less, likely. See, e.g., Heil Co., 2024 WL 4925901, at *34
(citing Palm Bay, 396 F.3d at 1376 (“Purchaser sophistication may tend to minimize

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D. The Coexistence of the Cited Marks Inter Se
As discussed above, Applicant argues that the cited marks “already coexist
alongside each other, even though the goods are related.” 10 TTABVUE 21. Applicant
notes elsewhere in its appeal brief that this coexistence is pursuant to a 2013
agreement between Ian Blackburn, the owner of the cited ’401 Registration, and
Abeja, LLC, the owner of the cited ’046 and ’226 Registrations, id. at 17-18, that is in
the record.97
Applicant argues that
[c]learly, the USPTO did not believe that the Cited Marks
sharing the term BEEKEEPER for closely related goods
(alcoholic beverages except beers vs. wine and wine made
from grapes) outweighed the parties’ understanding of the
marketplace in which they are intimately familiar. Thus,
the USPTO must have determined that BEEKEEPER was
a commercially weak mark for alcoholic beverages, and
thus, coexistence was possible.
The Coexistence Agreement does not go to relatedness but
goes to support the finding that the registrants, the
USPTO, and third parties in the marketplace agree and
understand that small differences between BEEKEEPER
marks are sufficient to prevent consumer confusion
between goods that are even more related to one another
than either are to the Applicant’s goods.
Id. at 18.
likelihood of confusion. Conversely, impulse purchases of inexpensive items may tend to have
the opposite effect.”) (internal citation omitted)). We find that the fourth DuPont factor is
neutral in our analysis of the likelihood of confusion.
97 January 15, 2025 Request for Reconsideration at TSDR 22-25. We note that Applicant itself
had the option of seeking a consent from the owners of the cited registrations, see In re Solid
State Design Inc., No. 87269041, 2018 WL 287909, at *1 (TTAB 2018), but either did not
attempt to obtain a consent, or failed to do so.

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Applicant further argues that
By allowing these two marks to coexist, even with a consent
agreement, the USPTO clearly agreed that the small
difference between and ‘S and a generic term was enough
to avoid consumer confusion. This means that the marks
must be significantly weak for such small differences to
avoid consumer confusion for exact goods. In this case,
Applicant’s goods are not even alcoholic beverages. They
are coffee and coffee-based beverages, which are not
identical or even closely related to wine or alcoholic
beverages. Moreover, as previously discussed, Applicant’s
Mark has features that distinguish it from the Cited Marks
such as a design, spacing between BEE and KEEPER, and
the additional wording COFFEE. Applicant’s Mark is not
in the possessive form. One mark being in the possessive
form, while the other is not was the primarily reason the
owners of the Cited Marks believed their marks could
coexist, and the USPTO did not reject this reasoning.
Therefore, because the Cited Marks for the same goods
were allowed to register, so should the Applicant’s Mark for
coffee, a very different product, be allowed to register and
coexist with the Cited Marks.
Id. at 18-19.
Applicant concludes that the “USPTO has clearly established the precedent that
BEEKEEPER Formative Marks are able to coexist with one another. Accordingly,
Applicant’s Application should also be allowed to proceed to publication, which is both
consistent with the USPTO’s prior reasoning and of the intricacies in the marketplace
where such marks coexist.” Id. at 20.
The Examining Attorney responds that “Applicant’s position ignores how the
Register, as well as USPTO policy and positions, could have changed in the decade
since” and that “prior decisions and actions of other trademark examining attorneys
in applications for other marks have little evidentiary value and are not binding upon

Serial No. 98046428
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the USPTO or the Trademark Trial and Appeal Board.” 12 TTABVUE 8-9 (citations
omitted).
In its reply brief, Applicant argues that
the Register has changed with the addition of the Trinity
Bay Application such that there will now be three (3)
BEEKEEPER Formative Marks that are going to coexist
on the Register that include the term BEEKEEPER
covering goods that are even closer one another than any
one of such BEEKEEPER Formative Marks are to
Applicant’s Mark. As such, the USPTO must believe that
the intricacies of the marketplace result in an
understanding that only minor differences between
BEEKEEPERS Formative Marks do not result in
consumer confusion and therefore can coexist with one
another.
13 TTABVUE 4.
Applicant’s arguments are unavailing. The Board has rejected the notion that “a
consent agreement with one third party is an admission that another’s use of the
mark is not likely to cause confusion,” and has held that “[n]o such presumption can
be made from that type of agreement.” DC Comics v. Pan Am. Grain Mfg. Co., No.
91125404, 2005 WL 2093233, at *7 (TTAB 2005). The fact that the owner of the cited
’401 Registration coexists in the marketplace and on the Register with the owner of
the cited ’046 and ’226 Registrations under an agreement restricting the parties’ uses
of their respective marks does not reflect a determination or belief on the part of
either the owner of the cited ’401 Registration or the USPTO that the mark shown in
the ’401 Registration and Applicant’s mark can also coexist on the Register.

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E. Summary
The key first and second DuPont factors, and the third factor, support a conclusion
that confusion is unlikely, and the fourth and sixth DuPont factors are neutral. The
involved marks are similar, and the record shows that coffee not infused with alcohol
is frequently sold by sellers of various alcoholic beverages, including wines and
spirits, that fall within the full scope of the goods identified in the ’401 Registration
as “alcoholic beverages except beers,” and that the channels of trade for the involved
goods overlap to at least some degree. We conclude, on the basis of the record as a
whole, that consumers who have a general recollection of the cited BEEKEEPER
mark for “alcoholic beverages except beers” who separately encounter Applicant’s
composite mark, dominated by the words BEE KEEPERS, for coffee not infused with
alcohol are likely to believe mistakenly that the goods have a common source.
Decision: The refusal to register is affirmed.