BS Liquor, LLC DBA MudHen Brewing Company

This Opinion is not a
Precedent of the TTAB
Oral Hearing: April 28, 2026 Mailed: August 31, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
In re BS Liquor, LLC DBA MudHen Brewing Company
_____
Serial No. 97474171
_____
Michael F. Snyder of Volpe Koenig
for BS Liquor, LLC DBA MudHen Brewing Company.
Alexandria Bryant, Trademark Examining Attorney, Law Office 113,
Myriah Habeeb, Managing Attorney.
_____
Before Heasley, Cohen, and Brock, Administrative Trademark Judges.
Opinion by Cohen, Administrative Trademark Judge:
Applicant BS Liquor, LLC DBA MudHen Brewing Company seeks registration
on the Principal Register of the mark MUDHEN BREWING COMPANY (BREWING
COMPANY dislaimed) in standard characters for “beer” in International Class 32.1
1 Application Serial No. 97474171 was filed on June 24, 2022, under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a), based on an allegation of first use in commerce and
anywhere of May 30, 2019.
Citations to the prosecution file refer to the USPTO’s TRADEMARK STATUS & DOCUMENT
RETRIEVAL (“TSDR”) system and identify the documents by title, date, and page in the
downloadable .pdf version. Citations to the briefs and other materials in the appeal record
refer to the Board’s TTABVUE online docket system.

Serial No. 97474171
- 2 -
The Examining Attorney has refused registration under Section 2(d) of the
Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used
in connection with the identified goods, is likely to cause confusion, to cause mistake,
or to deceive because it resembles the registration for the mark MUD HENS in
standard characters for a variety of services including “bar and restaurant services”
in International Class 43.2
When the refusal was made final, Applicant concurrently filed a request for
reconsideration, petition to revive the application, and an appeal.3 After the
application was revived and the request for reconsideration was denied,4 the
application was remanded to the Examining Attorney, who then issued a subsequent
final office action.5 The appeal was resumed and is fully briefed.6 Counsel for
2 Registration No. 4571790 issued on the Principal Register on July 22, 2014 for “concession
stands featuring food and drink” in International Class 35 and “bar and restaurant services;
fast-food restaurants and snackbars” in International Class 43. The refusal is based on the
“bar and restaurant services” only. See September 19, 2022 Nonfinal Office Action and April
8, 2023 Final Office Action. The registration has been renewed.
3 The application was deemed abandoned for failure to timely respond to the Final Office
Action. August 3, 2023 Notice of Abandonment; see October 3, 2023 Petition to Revive
Abandon Application.
4 There are two entries for the Examining Attorney’s Request for Reconsideration Denied –
January 8, 2024 Request for Reconsideration Denied (filed 9:12 am) and January 8, 2024
Request for Reconsideration Denied (filed 9:28 am). The 9:28 am entry indicates that it was
issued “to correct the correspondence and email address consistent with applicant’s CAR
Form dated October 3, 2023.” January 8, 2024 Request for Reconsideration Denied (filed 9:28
am). Accordingly, we give the January 8, 2024 Request for Reconsideration Denied (filed 9:12
am) no further consideration.
5 7-9 TTABVUE.
6 10 TTABVUE; 24, 26-27 TTABVUE. Applicant attached materials to its main and reply
briefs. It is a well settled rule that the record in an application should be complete prior to
the filing of an appeal. Trademark Rule 2.142(d), 37 C.F.R. § 2.142(d). Any new materials not
properly of record are untimely and have been given no consideration. See In re James S.
Fallon, No. 86882668, 2020 WL 6255423, at *2 (TTAB 2020). To the extent any of the
materials duplicate evidence submitted during prosecution, they are superfluous. See In re

Serial No. 97474171
- 3 -
Applicant and the Examining Attorney appeared at an oral hearing before the panel
on April 28, 2026. We have reviewed the evidence and arguments properly made of
record, although we do not necessarily address all of them in this opinion. For the
reasons explained below, we affirm the refusal to register.
I. Likelihood of Confusion
“The Trademark Act prohibits registration of a mark that so resembles a
registered mark as to be likely, when used on or in connection with the goods or
services of the applicant, to cause confusion [or] mistake, or to deceive.” In re Charger
Ventures LLC, 64 F.4th 1375, 1379 (Fed. Cir. 2023). Our determination of 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. du Pont de Nemours & 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).
In any likelihood of confusion analysis, different DuPont factors may play a
dominant role and some factors may not be relevant. Naterra Int’l, Inc. v. Bensalem,
92 F.4th 1113, 1116 (Fed. Cir. 2024) (citing Tiger Lily Ventures Ltd. v. Barclays Cap.
Inc., 35 F.4th 1352, 1362 (Fed. Cir. 2022)). In addition, varying weight may be
Jimenez, No. 97551823, 2025 WL 3126703, *1, n.4 (TTAB 2025) (“Applicant's submission
with his appeal brief of portions of the prosecution record was superfluous and the Board
strongly discourages this practice.”); In re Michalko, No. 85584271, 2014 WL 2531202, *1
(TTAB 2014) (“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.”).

Serial No. 97474171
- 4 -
assigned to each factor depending on the evidence presented, and “any one of the
factors may control a particular case.” Id.; see also Charger Ventures, 64 F.4th at 1381.
Two key considerations are the similarities between the marks and the similarities
between the goods or services, which are addressed under the first two DuPont
factors. In re i.am.symbolic, llc, 866 F.3d 1315, 1322 (Fed. Cir. 2017) (quoting Herbko
Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 1164-65 (Fed. Cir. 2002)). We discuss
the relevant factors below.
A. Strength of the Cited Mark
Before we make our comparison of the marks, we consider the strength of the cited
mark. We do so because a determination of the strength of this mark helps inform us
as to its scope of protection.
The fifth DuPont factor considers the “fame [or strength] of the prior mark,”
DuPont, 476 F.2d at 1361. Applicant is correct in noting that “[t]here is nothing in
the record regarding commercial strength of Registrant’s MUD HENS mark for ‘bar
and restaurant services.’”7 As is normally the case in ex parte proceedings, there is
no evidence as to fame or commercial strength particularly since the owner of the
cited registration is not a party to this proceeding and thus cannot introduce evidence
regarding its use of the cited mark. See In re Thomas, No. 78334625, 2006 WL
1258862, at *8 n.11 (TTAB 2006). Furthermore, fame, if it exists, may favor the prior
user by conveying a broader scope of protection to its mark. See Wet Seal Inc. v. FD
Mgmt. Inc., No. 91157022, 2007 WL 458529, at *8 n.18 (TTAB 2007). In other words,
7 24 TTABVUE 24.

Serial No. 97474171
- 5 -
the lack of evidence of fame of Registrant’s mark does not make a likelihood of
confusion less likely. Indeed, “it is settled that the absence of such evidence is not
particularly significant in the context of an ex parte proceeding.” In re Davey Prods.
Pty Ltd., No. 77029776, 2009 WL 2420527, at *7 (TTAB 2009).
The fifth factor is neutral.
The sixth DuPont factor considers “[t]he number and nature of similar marks in
use on similar goods.” See DuPont, 476 F.2d at 1361. Because there is no evidence of
third-party use or registration of MUD HEN[S] in the record, let alone evidence of
third-party use or registration in connection with similar goods or services as are at
issue here, we cannot find that the scope of protection afforded to the cited mark is
lessened. See Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1339 (Fed. Cir.
2015) (“Third party registrations are relevant to prove that some segment of the
[mark] has a normally understood and well-recognized descriptive or suggestive
meaning, leading to the conclusion that that segment is relatively weak.”); Omaha
Steaks Int'l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 1324 (Fed. Cir. 2018)
(“[T]he controlling inquiry is the extent of third-party marks in use on ‘similar’ goods
or services.”) (citing Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d
874, 877 (Fed. Cir. 1992)).
The sixth DuPont factor is neutral.
Because the cited registration is “prima facie evidence of the validity of the
registered mark,” see Section 7(b) of the Trademark Act, 15 U.S.C. § 1057(b), we must
assume that the mark is inherently distinctive as evidenced by its registration on the
Principal Register without a claim of acquired distinctiveness under Section 2(f) of

Serial No. 97474171
- 6 -
the Trademark Act. See New Era Cap Co., Inc. v. Pro Era, LLC, No. 91216455, 2020
WL 2853282, at *11 (TTAB 2020). We therefore accord the cited mark “the normal
scope of protection to which inherently distinctive marks are entitled.” In re Info.
Builders Inc., No. 87753964, 2020 WL 2094122, at *10 (TTAB 2020).
B. Similarity 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.’” Sabhnani v. Mirage Brands, LLC, No. 92068086, 2021 WL 6072822, at
*13 (TTAB 2021) (quoting Palm Bay Imps., 396 F.2d at 1371). “Similarity in any one
of these elements may be sufficient to find the marks confusingly similar.” In re Inn
at St. John’s, LLC, No. 87075988, 2018 WL 2734893, at *5 (TTAB 2018), aff’d 777
Fed. Appx. 516 (Fed. Cir. 2019) (quoting In re Davia, No. 85497617, 2014 WL
2531200, at *2 (TTAB 2014)). “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. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)
(internal quotation marks omitted)). We keep in mind that consumers must depend
on their recollection of marks to which they have previously been exposed and that
their memories are fallible. See, e.g., In re St. Helena Hosp., 774 F.3d 747, 751 (Fed.
Cir. 2014); Sage Therapeutics, Inc. v. Sageforth Psych. Servs., LLC, No. 91270181,

Serial No. 97474171
- 7 -
2024 WL 1638376, at *5 (TTAB 2024) (quoting In re i.am.symbolic, llc, No. 85916778,
2018 WL 3993582, at *4 (TTAB 2018)).
“No element of a mark is ignored simply because it is less dominant, or would not
have trademark significance if used alone.” In re Electrolyte Labs. Inc., 929 F.2d 645,
647 (Fed. Cir. 1990) (citing Spice Islands, Inc. v. Frank Tea & Spice Co., 505 F.2d
1293, 1295 (CCPA 1974)). On the other hand, “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. Indeed, this type of analysis appears to be unavoidable.” In re Nat’l
Data Corp., 753 F.2d 1056, 1058 (Fed. Cir. 1985).
The Examining Attorney argues that Applicant’s MUDHEN BREWING
COMPANY mark and the cited MUD HENS mark are confusingly similar because
the common element, MUD HENS/MUDHEN, is the dominant portion of both
marks;8 the additional wording in Applicant’s mark is merely descriptive and
disclaimed;9 and both marks are “evocative of a reference to the American Coot (a
bird) and are arbitrary in the contest of applicant’s beer and registrant’s bar
services.”10
Applicant argues that even though the marks share “common elements,”11 there
are “more meaningful and obvious differences exist between the marks at issue …
8 26 TTABVUE 5-6.
9 Id. at 6.
10 Id. at 6-7.
11 24 TTABVUE 10.

Serial No. 97474171
- 8 -
[and the] addition of BREWING COMPANY is not generic surplusage, but a phrase
that immediately communicates to consumers that the source is a brewer producing
beer”;12 and that consumers will see Registrant’s MUD HENS, a common name for
the American coot bird, as “a bird-themed sports team name, like, for example,
‘CARDINALS’, ‘ORIOLES’, or ‘BLUE JAYS.’”13 These arguments are unavailing.
The marks are similar because they share the terms MUD HENS/MUDHEN.
Inasmuch as there is no evidence to the contrary or alternative interpretation, as
asserted by both Applicant and the Examining Attorney, the terms MUD
HENS/MUDHEN in the marks mean and engenders the commercial impression of
an American coot. As such, both marks are arbitrary in connection with the relevant
goods and services. In particular, as the cited mark is arbitrary when used in
connection with bar and restaurant services it is entitled to a broad scope of protection
or exclusivity of use.
Both marks lead with the nearly identical and dominant term(s) MUDHEN/MUD
HENS, with the only difference in this leading component being Registrant’s mark
contains a space between MUD and HENS in its plural form. The marks’ “lead words
are their dominant portion and are likely to make the greatest impression on
consumers.” Detroit Athl., 903 F.3d at 1303; see also In re Dare Foods Inc., No.
88758625, 2022 WL 970319, at *6 (TTAB 2022). Further, the fact that Registrant’s
MUD HENS mark is subsumed in nearly its entirety by the dominant portion of
12 Id. at 11.
13 Id.

Serial No. 97474171
- 9 -
Applicant’s mark increases the similarity between the two. While there is no explicit
rule that we must find marks similar where one mark incorporates the entirety of
another mark, the fact that it does typically increases their similarity. See, e.g., China
Healthways Inst. Inc. v. Wang, 491 F.3d 1337, 1340 (Fed. Cir. 2007) (applicant’s mark
CHI PLUS is similar to opposer’s mark CHI both for electric massagers); Coca-Cola
Bottling Co. v. Joseph E. Seagram and Sons, Inc., 526 F.2d 556, 557-58 (CCPA 1975)
(applicant’s mark BENGAL LANCER for club soda, quinine water and ginger ale is
similar to BENGAL for gin). Contrary to Applicant’s arguments,14 if a portion of both
marks is the same, then the marks may be confusingly similar notwithstanding some
differences. See, e.g., Charger Ventures, 64 F.4th at 1382 (“an additional word or
component may technically differentiate a mark but do little to alleviate
confusion”); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1266 (Fed.
Cir. 2002) (similar commercial impression even though applicant’s mark PACKARD
TECHNOLOGIES, with “TECHNOLOGIES” disclaimed, does not incorporate every
feature of opposer’s HEWLETT PACKARD marks); Double Coin Holdings, Ltd. v. Tru
Dev., No. 92063808, 2019 WL 4877349, at *8 (TTAB 2019) (“likelihood of confusion
often has been found where the entirety of one mark is incorporated within another.”)
(quoting Hunter Indus., Inc. v. Toro Co., No. 91203612, 2014 WL 1649332, at *11
(TTAB 2014)). Consumers with a general recollection of one of the involved marks
who separately see or hear the other involved mark are unlikely to distinguish the
14 See, e.g., 24 TTABVUE 11.

Serial No. 97474171
- 10 -
marks because the word MUDHEN appears as one word in the singular in Applicant’s
mark and as two words in the plural in Registrant’s mark.
While the addition of the disclaimed BREWING COMPANY may be a point of
difference in Applicant’s mark in sound when fully articulated or in appearance, it
does not alleviate confusion. Charger Ventures, 64 F.4th at 1382 (citing Detroit Athl.,
903 F.3d at 1304-05). Applicant disclaims BREWING COMPANY and thus admits
its descriptiveness or genericness. See In re Zuma Array Ltd., No. 79288888, 2022
WL 3282655, at *7 (TTAB 2022) (“Applicant ‘disclaimed exclusive rights in the term
‘Smart,’ thus conceding that ‘smart’ is merely descriptive of electronic sensor
modules.”) (citing In re Six Continents Ltd., No. 88430142, 2022 WL 407385, at *8
(TTAB 2022) (disclaimer of the word SUITES in mark ATWELL SUITES “is a
concession that ‘Suites’ is not inherently distinctive”)). Disclaimed matter that is
descriptive of a party’s goods is typically less significant or less dominant when
comparing marks. Detroit Athl., 903 F.3d at 1305. The non-source identifying nature
of BREWING COMPANY and the disclaimer thereof constitutes a rational reason for
giving the term less weight in our analysis. See Detroit Athl., 903 F.3d at 1305.
Consumers will focus more on the MUDHEN portion of Applicant’s mark as the
source-indicator for the goods, as opposed to the non-source identifying and
disclaimed BREWING COMPANY.
BREWING COMPANY in Applicant’s mark may convey the meaning and
commercial impression that the goods are or are related to beer, as argued by

Serial No. 97474171
- 11 -
Applicant,15 yet at the same time, Applicant’s mark does not necessarily convey a
different meaning or impression from the cited registration. Consumers familiar with
Registrant’s mark, MUD HENS, who encounter Applicant’s mark, MUDHEN
BREWING COMPANY, could perceive it as indicating that the MUD HENS bar and
restaurant offers its own beer or is also a brewing company. See In re Mighty Leaf
Tea, 601 F.3d 1342, 1346 (Fed. Cir. 2010).
The nature of Applicant’s goods also means that there will be circumstances when
the goods may be called for by the shortened MUDHEN, as in a restaurant or bar.
See, e.g., In re Aquitaine Wine USA, LLC, No. 86928469, 2018 WL 1620989, at *7
(TTAB 2018) (“[C]onsumers often have a propensity to shorten marks when ordering
[goods] orally[.]”). Additionally, bar and restaurant patrons are unlikely to see
Applicant’s label before ordering and may never see the label if served by the glass,
as beer is often served in bars and restaurants. See, e.g., In re Bay State Brewing Co.,
No. 85826258, 2016 WL 1045677, at *3 (TTAB 2016) (“Beer is often ordered by name,
in a bar or restaurant, or from a menu, where only the name of the beer will be used
… Many consumers ordering these goods from a bartender or waiter/waitress will not
have the opportunity to see a label when they order the product. Further, if the beer
is served in a glass because it is a draft beer from a keg, the consumer may never see
a label.”).
Additionally, “[s]ince [the cited] mark is a standard character mark, we must
consider that the . . . mark may be presented in any font style, size or color, including
15 6 TTABVUE 8.

Serial No. 97474171
- 12 -
the same font, size and color as the literal portions of Applicant’s mark” because the
“rights associated with a standard character mark reside in the wording per se and
not in any particular font style, size or color.” Aquitaine Wine, 2018 WL 1620989, at
*5 (citing Citigroup Inc. v. Cap. City Bank Grp., 637 F.3d 1344, 1352 (Fed. Cir.
2013)). See also Viterra, 671 F.3d at 1363. Accordingly, for purposes of our comparison
of the marks in appearance, we must assume that the marks could be depicted in a
similar manner. Aquitaine Wine, 2018 WL 1620989, at *5; see also In re N.Y. Times
Co., Ser. No. 90106071, 2023 WL 279414, at *1 n.2 (TTAB 2023).
Based upon the above analysis, when comparing the marks overall, we find they
are similar in sight, sound, connotation and commercial impression. On the whole,
the first DuPont factor weighs in favor of finding a likelihood of confusion. See Double
Coin Holdings, 2019 WL 4877349, at *9.
C. Relatedness of the Goods and Services, Channels of Trade, and
Classes of Customers
1. Goods and Services
In analyzing the second DuPont factor, we look to the identifications in the
application and cited registration. See Stone Lion Cap. Partners, LP v. Lion Cap. LLP,
746 F.3d 1317, 1323 (Fed. Cir. 2014); Octocom Sys., Inc. v. Houston Computers Servs.
Inc., 918 F.2d 937, 942 (Fed. Cir. 1990). It is sufficient for a refusal based on likelihood
of confusion that relatedness is established for any good or service encompassed by
the identification in a particular class in the application. In re i.am.symbolic, llc, No.
85044494, 2015 WL 6746543, at *3 (TTAB 2015), aff'd, 866 F.3d 1315 (Fed. Cir. 2017).
Since Applicant’s goods are “beer” and Registrant’s services are “bar and

Serial No. 97474171
- 13 -
restaurant services,” Applicant argues that that the Examining Attorney is required,
and has failed, to show “something more,” than just third-party marks that are used
for both “bar and restaurant services” and “beer.” See In re Coors Brewing Co., 343
F.3d 1340, 1345 (Fed. Cir. 2003) (quoting Jacobs v. Int’l Multifoods Corp., 668 F.2d
1234, 1236 (CCPA 1982)). Applicant points to Coors Brewing,16 which held that “‘to
establish likelihood of confusion a party must show something more than that similar
or even identical marks are used for food products and for restaurant services.”’ Coors
Brewing, 343 F.3d at 1345 (citation omitted). However, that case went on to say that
“if the registrant’s mark had been for a brewpub or for restaurant services and beer
… the goods and services associated with the two marks would clearly be related and
the case for a likelihood of confusion therefore much stronger.” Id. at 1347. Such is
the case here.
In view of the definition for “bar” which means “a room or establishment where
alcoholic drinks and sometimes food are served,”17 it is clear that bar services such as
Registrant’s focus on serving alcoholic beverages, which could include Applicant’s
beer. Thus, we find an inherent relationship between beer and bars, so there is no
need to support the relatedness of such goods and services with a showing of
“something more.” Cf. Coors Brewing, 343 F.3d at 1347 (stating that a mark for a
brewpub “would clearly be related” to a mark for beer). Indeed, inherent relatedness
16 24 TTABVUE 12-14.
17 MERRIAM-WEBSTER.COM, April 18, 2023 Final Office Action at TSDR 14; see
AHDICTIONARY.COM, January 8, 2024 Request for Reconsideration Denied at TSDR 66 (“a
counter at which drinks, especially alcoholic drinks, and sometimes food, are served”).

Serial No. 97474171
- 14 -
often exists when the services in question include or focus on the sale of the particular
goods in question. See In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 464 (Fed. Cir.
1988) (“applicant’s ‘general merchandise store services’ would include the sale of
furniture and the evidence introduced by the applicant in voluminous quantity makes
it clear--though its arguments attempt to play down the fact--that it does in fact sell
furniture. What else it sells is irrelevant; there is overlap.”); In re Accelerate s.a.l.,
No. 77522433, 2012 WL 684459, at *4 (TTAB 2012) (“applicant’s broadly worded
‘providing food and drink’ could encompass a coffee house ... [so that] applicant’s
services, as recited, are sufficiently related to [registrant’s] coffee”).
In addition to the inherent relationship between beer and bar services, to satisfy
the “something more” requirement,18 we note the inherent strength of Registrant’s
MUD HENS mark as well as the Examining Attorney’s evidence of 23 valid and
subsisting registrations19 to demonstrate that the same entity has registered a single
18 The Board has found the “something more” requirement to be met when, for example, a
party’s mark clearly demonstrates its restaurant specializes in the other party’s type of
goods or when the cited mark is particularly strong. See, e.g., In re Accelerate s.a.l., No.
77522433, 2012 WL 684459, at *3-4 (TTAB 2012) (COLOMBIANO and COLOMBIAN, both
meaning “from Columbia,” a country known for its coffee beans; applicant's “providing food
and drink” services found related to registrant's “coffee”); In re Opus One, Inc., No. 75722593,
2001 WL 1182924, at *2 (TTAB 2001) (“something more” found where registrant’s OPUS
ONE mark was “strong and arbitrary” and entitled to a broad scope of protection; registrant's
OPUS ONE wine was sold in applicant's restaurant as well); In re Mucky Duck Mustard Co.,
Inc., No. 603019, 1988 WL 252484, at *2-3 (TTAB 1988) (no evidence of registrations of marks
containing the term “Mucky Duck” for mustard, restaurant services, or any other goods or
services; marks at issue were substantially similar, and registrant’s mark for restaurant
services was “particularly unique,” “memorable,” and “strong” in nature).
19 April 18, 2023 Final Office Action at TSDR 62-63, 68-71, 76-77, (BELMONT BREWING
COMPANY, WILMINGTON BREWING COMPANY, AMELIA ISLAND BREWING
COMPANY, BEACHCREST BREWING COMPANY and design); January 8, 2024 Request
for Reconsideration Denied at TSDR 10-45 (BICHOLA, PIG MINDS, GAS CITY BREWING
CO. and design, CORONADO BREWING CO., GREAT LAKES, THE BRONX BEER HALL,
CDR CTY CEDAR CITY BREWING CO. and design, BREWERY BHAVANA,

Serial No. 97474171
- 15 -
mark for bar or restaurant services, as well as beer. Although these third-party
registrations are not evidence that the marks therein are in use or that the public is
familiar with them, they may have some probative value to the extent that they serve
to suggest that the listed goods and services are of a type which may emanate from
the same source. In re Albert Trostel & Sons, No. 74186695, 1993 WL 596274, at
*3 (TTAB 1993) (citing Mucky Duck Mustard, 1988 WL 252484, at *2). The
Examining Attorney also submitted webpages from at least 23 third-party Internet
websites showing that the same entity offers bar and restaurant services under a
mark, and produces, brews or offers for sale beer under that same mark.20
In rebuttal, Applicant argues that the “critical factor here is the relationship
between a mark used on ‘beer’ on the one hand, and ‘Bar and restaurant services’
offered by a minor league baseball club, on the other”;21 the Examining Attorney’s
third-party evidence shows “at most, that some brewpubs or breweries also offered,
in some cases, a place to serve their own beer or food … there is no common or per se
AUTONOMOUS SOCIETY, BREWBURY, COME BURY A BREW, WHITE LABS
BREWING CO., ABERRATION CO., TUMBLED ROCK, FERNDALE PROJECT,
GOODWOOD BREWING AND SPIRITS, JAILBREAK, PERRIN BREWING CO., LOCAL
RELIC, and MR. TEMPO and design).
20 September 19, 2022 Office Action at TSDR 16-36, 48-60 (BJ’s Restaurant Brewhouse,
Dogfish Head, Elysian Brewing and Elysian Fields, Flossmoor Station, Deep River Brewing
Co., and Aviator Brewing Co.); April 18, 2023 Final Office Action at TSDR 19-61 (Firestone
Walker Brewing Company, Midland Brewing Co., Ommegang Brewery, Rogue, and Von
Jakob Winery & Brewery); January 8, 2024 Request for Reconsideration Denied at TSDR 90-
121, 131-82, 187-203 (Resident Culture Brewing Company, Triple C Brewing Co., Lagunitas
Brewing Co., Terrapin Beer Co., Motor City Brewing Works, NoDa Brewing Company, Free
Range Brewing, Burial Beer Co., Divine Barrel Brewing, Sycamore, The New Village
Brewery, and Highland Brewing).
21 24 TTABVUE 12.

Serial No. 97474171
- 16 -
connection between branded beer and ‘bar and restaurant services’”;22 that “the ID
manual distinguishes between bar services and brewpub services wherein a brewpub
is a place that sell[s] its own beer for consumption on-site … Most bars that are a part
of restaurants do not offer this service and this is clearly identified separately by the
Office from bar services”;23 and that “a minor league baseball club, would offer good[s]
and beverages as part of the baseball experience … but is not an independent ‘beer
business.’”24
As to Applicant’s argument that the Examining Attorney’s third-party evidence is
of brewpubs and breweries, not bar and restaurant services, we disagree with
Applicant’s characterization of the evidence. As noted, the Examining Attorney
submitted definitions for “bar” which means “a room or establishment where alcoholic
drinks and sometimes food are served”;25 but also definitions for “brewpub” which
means “a bar or restaurant featuring beer that is brewed on site”;26 and “brewery”
which means “a business that makes and sells beer.”27 Not only do the dictionary
22 27 TTABVUE 6-7 (emphasis in original).
23 24 TTABVUE 14-15.
24 Id. at 16.
25 MERRIAM-WEBSTER.COM, April 18, 2023 Final Office Action at TSDR 14; see
AHDICTIONARY.COM, January 8, 2024 Request for Reconsideration Denied at TSDR 66 (“a
counter at which drinks, especially alcoholic drinks, and sometimes food, are served”).
26 COLLINSDICTIONARY.COM, January 8, 2024 Request for Reconsideration Denied at TSDR
56; see AHDICTIONARY.COM, id. at 59 (“a pub or bar where the owners make their own beer
and serve it on the premises”); MERRIAM-WEBSTER.COM, id. at 61 (“a restaurant that sells
beverages brewed on the premises”). Applicant also submitted a definition for which means
“a place of business serving beer or other alcoholic drinks and often basic meals.”
AHDICTIONARY.COM, id. at 68.
27 WIKIPEIDA.COM, id. at 70. Although “[t]here are inherent problems regarding the reliability
of Wikipedia entries because Wikipedia is a collaborative website that permits anyone to edit
the entries,” Applicant did not introduce any evidence to rebut the accuracy of the Examining

Serial No. 97474171
- 17 -
definitions indicate that a brewpub is a type of bar or restaurant that sells beer, the
Examining Attorney’s third-party evidence provides several examples that establish
that the same entity, whether it is called a bar, brewpub, brewery, or restaurant, will
also produce, brew or offer for sale beer under that same mark, including, BJ’s
Restaurant and Brewhouse, Dogfish Head Brewery and Dogfish Head Restaurant,
Flossmoor Station Restaurant & Brewery, Firestone Walker Brewing Company
Taproom Restaurant, and Midland Brewing Co. Restaurant.28 See, e.g., In re Country
Oven, Inc., No. 87354443, 2019 WL 6170483, at *6 (TTAB 2019) (evidence that third
parties used a single mark for retail bakery shops and bakery products “bolster[ed]”
finding of relatedness); Wet Seal, 2007 WL 458529, at *10 (finding fragrances related
to women’s retail clothing stores where the evidence showed clothing stores selling
collateral products such as fragrances or other beauty care products “under either the
same marks or variations of the store marks”).
As to Applicant’s argument that Registrant’s bars and restaurants are associated
with a minor league baseball team, as we have explained in innumerable
decisions, “the question of registrability … must be decided on the basis of the
identification of [services] ... regardless of what the record may reveal as to the
particular nature of [a registrant’s services], the particular channels of trade or the
Attorney’s Wikipedia evidence or otherwise argue it is unreliable. In re IP Carrier Consulting
Grp., No. 78542726, 2007 WL 1751192, at *4 (TTAB 2007) (“[T]he Board will consider
evidence taken from Wikipedia so long as the non-offering party has an opportunity to rebut
that evidence by submitting other evidence that may call into question the accuracy of the
particular Wikipedia information.”). Thus, we have considered it, keeping in mind the
inherent limitations of Wikipedia entries.
28 September 19, 2022 Office Action at TSDR 16-24, 30-36. April 18, 2023 Final Office Action
at TSDR 19-29.

Serial No. 97474171
- 18 -
class of purchasers to which sales of the [services] are directed.” Octocom Sys., 918
F.2d at 942; see, e.g., i.am.symbolic, 866 F.3d at 1327 (“[T]he Board properly declined
to import restrictions into the identification of goods based on alleged real world
conditions.”); Stone Lion, 746 F.3d at 1321 (the Board must “give full sweep” to an
identification of goods regardless of registrant’s actual business).
After consideration of the admissible evidence of record, we find that collectively,
the evidence of record here also meets the “something more” requirement.29 In
addition to the mark in the cited MUD HENS registration being arbitrary and
inherently strong, as discussed above, the Examining Attorney’s evidence of third-
party use-based registrations and Internet websites shows that consumers encounter
beer under the same mark as bar or restaurant services, and that beer makers often
have their own bars.
2. Trade Channels and Consumers
The DuPont factor regarding channels of trade and classes of consumers must be
assessed according to the identifications of the respective goods and services in the
application and registration at issue. See, e.g., Coach Servs., 668 F.3d at 1370;
Packard Press, Inc. v. Hewlett–Packard Co., 227 F.3d 1352, 1360–61 (Fed.Cir.2000)
(“When the registration does not contain limitations describing a particular channel
of trade or class of customer, the goods or services are assumed to travel in all normal
channels of trade.”) .
29 Although the record lacks evidence that Applicant’s beer is offered at Registrant’s bars and
restaurants, evidence of such a commercial relationship, while probative, is not necessarily
required to find “something more.”

Serial No. 97474171
- 19 -
Applicant attempts to distinguish its trade channels and consumers by arguing
that “[b]eer goods generally move through wholesale distributors, retail liquor and
grocery stores, and brewery taprooms”;30 that “some minor league baseball stadiums
may offer beer … this tangential overlap does not create confusion”;31 and that
Registrant offers its services at a “single location within the minor league baseball
stadium for the MUD HENS minor league baseball club.”32
Applicant’s attempt to confine Registrant’s services to minor league baseball
stadiums and Applicant’s goods to “wholesale distributors, retail liquor and grocery
stores, and brewery taprooms” is unavailing. As noted, we cannot consider arguments
“about how the parties’ actual goods, services, customers, trade channels, and
conditions of sale are narrower or different from the goods and services identified in
the applications and registrations.” In re FCA US LLC, No. 85650654, 2018 WL
1756431, at *4 n.18 (TTAB 2018). Because the identifications of goods and services
contain no limitations, Applicant’s goods and Registrant’s services are presumed to
move in all ordinary channels of trade and would be available to all classes of
purchasers. See Stone Lion, 746 F.3d at 1323; Coach Servs., 668 F.3d at 1369 (absent
limitation “goods are presumed to travel in all normal channels . . . for the relevant
goods.”).
Also, the internet evidence discussed above showing that Applicant’s beer and
Registrant’s bar and restaurant services are related demonstrates that those types of
30 24 TTABVUE 23.
31 Id.
32 Id. at 24.

Serial No. 97474171
- 20 -
goods and services are advertised on the same third-party websites, under the same
mark, to the same consumers. See, e.g., In re Embiid, No. 88202890, 2021 WL
2285576, at *15 (TTAB 2021) (Board found “channels of trade and classes of
customers plainly overlap” where record demonstrated relevant goods sold together
on third-party websites and offered and registered under a single mark by numerous
businesses); In re Bay State Brewing Co., Inc., No. 85826258, 2016 WL 1045677, at
*2 (TTAB 2016) (Trade channels for beer “include liquor stores, beer sections of
grocery and convenience stores, and the like, as well as bars and restaurants, and the
customers would include ordinary consumers.”).
Based on the foregoing, we find that the respective goods and services are related
and the channels of trade and classes of customers overlap. The second and third
DuPont factors weigh in favor of a likelihood of confusion.
D. Actual Confusion
The seventh DuPont factor considers the “nature and extent of any actual
confusion.” DuPont, 476 F.2d at 1361. The eighth DuPont factor contemplates the
“length of time during and conditions under which there has been concurrent use
without evidence of actual confusion.” Id.
Applicant asserts that it has used its mark since May 30, 2019;33 and that
“[d]espite overlapping exposure of both Applicant’s beer and Registrant’s bar and
restaurant services to the public, there has been no known instance of actual
33 24 TTABVUE 24.

Serial No. 97474171
- 21 -
confusion.”34 Applicant submits no evidence in support of this assertion but, even
where there is co-existence, it is of limited value in proving actual confusion in the ex
parte context where there is no opportunity to hear from the owner of the cited
mark. See In re Opus One Inc., No. 75722593, 2001 WL 1182924, at *7 (TTAB 2001)
(“The fact that an applicant in an ex parte case is unaware of any instances of actual
confusion is generally entitled to little probative weight in the likelihood of confusion
analysis, inasmuch as the Board in such cases generally has no way to know whether
the registrant likewise is unaware of any instances of actual confusion....”) (citations
omitted).
Further, 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 the Registrant
under the cited registration. Opus One, 2001 WL 1182924, at *8-9. In other words,
for the absence of actual confusion to be probative, there must have been a reasonable
opportunity for confusion to have occurred. Barbara’s Bakery Inc. v. Landesman, No.
91157982, 2007 WL 196406, at *5 (TTAB 2007) (the probative value of the absence of
actual confusion depends upon there being a significant opportunity for actual
confusion to have occurred).
Here, the alleged period of co-existence is not significant and there is no evidence
of record regarding the marketing and sales of Applicant’s goods or Registrant’s
services or whether any overlap exists. On this record, we are not convinced that
34 Id.

Serial No. 97474171
- 22 -
there has been a reasonable opportunity for confusion to occur. Moreover, it is
unnecessary to show actual confusion in establishing likelihood of confusion. See
Weiss Assocs. Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 1549 (Fed. Cir. 1990).
This factor is neutral.
E. Conclusion
Having considered all evidence and arguments bearing on the relevant DuPont
factors, we find that the similarity of the marks, the relatedness of the respective
goods and services, and overlap in channels of trade and classes of customers weigh
in favor of finding a likelihood of confusion. The factors regarding strength of the
mark in the cited registration and actual confusion are neutral. No factor supports
Applicant’s position.
We conclude that confusion is likely.
Decision: The refusal to register Applicant’s mark is affirmed under Section 2(d), 15
U.S.C. § 1052(d).