in Re: R.s. Lipman Brewing Company, LLC v. GS Enters., LLC, 794 F.3d 1334, 1338 Fed. Cir. 2015 . A finding is supported by…

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IN RE: R.S. LIPMAN BREWING COMPANY, LLC,
Appellant
______________________
2023-2131
______________________
Appeal from the United States Patent and Trademark
Office, Trademark Trial and Appeal Board in No.
88209633.
______________________
Decided: April 14, 2025
______________________
RUDOLPH A. T ELSCHER, J R., Husch Blackwell LLP, St.
Louis, MO, argued for appellant. Also represented by
J ENNIFER E. HOEKEL , D AISY MANNING; T IMOTHY L. CAPRIA ,
Nashville, TN; AVERY HITCHCOCK, Milwaukee, WI.
WILLIAM L AMARCA , Office of the Solicitor, United
States Patent and Trademark Office, Alexandria, VA, ar-
gued for appellee Coke Morgan Stewart. Also represented
by ERICA J EUNG D ICKEY , CHRISTINA J. HIEBER, F ARHEENA
YASMEEN RASHEED.
______________________
Before REYNA, SCHALL , and HUGHES , Circuit Judges.
SCHALL , Circuit Judge.
Case: 23-2131 Document: 44 Page: 1 Filed: 04/14/2025

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IN RE: R. S. LIPMAN BREWING COMPANY , LLC 2
R. S. Lipman Brewing Company, LLC (“Lipman”) seeks
to register the mark “CHICKEN SCRATCH” for beer. The
examining attorney at the United States Patent and Trade-
mark Office rejected Lipman’s application on the ground
that the mark is likely to be confused with the registered
mark “CHICKEN SCRATCH” for restaurant services (“the
cited mark”). The Trademark Trial and Appeal Board
(“Board”) upheld the examining attorney’s rejection based
on its findings that the cited mark is not weak, that the two
marks are identical, and that the examining attorney’s ev-
idence established the relatedness of beer and restaurant
services. In re R.S. Lipman Brewing Co., LLC, Serial No.
88209633, 2023 WL 3580372 (T.T.A.B. May 3, 2023), J.A.
1–25. We affirm.
I
The application at issue, application serial no.
88209633 (“the ’633 application”), was filed in November of
2018. The ’633 application sought to register the proposed
mark, a standard character mark “CHICKEN SCRATCH”
for “beer,” in International Class 32 (“the proposed mark”).
J.A. 29–31. In April of 2020, the examining attorney issued
a final rejection refusing registration under Section 2(d) of
the Trademark Act, 15 U.S.C. § 1052(d), on the grounds
that the proposed mark was likely to be confused with the
cited mark, which was registered on the Principal Register
in standard character form for “restaurant services” in In-
ternational Class 43 (Reg. No. 4,812,467). J.A. 350–55,
368–69.1 In October of 2020, Lipman requested
1 The examiner’s refusal was also based on likeli-
hood of confusion with another standard character mark
“CHICKEN SCRATCH” for “Distilled spirits, excluding
those sold in restaurants,” in International Class 33, Reg.
No. 5,747,177 (“the ’177 registration”). J.A. 353, 382–83.
This basis for the examiner’s refusal was later withdrawn,
J.A. 660, and is therefore not at issue in this appeal.
Case: 23-2131 Document: 44 Page: 2 Filed: 04/14/2025

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IN RE: R. S. LIPMAN BREWING COMPANY , LLC 3
reconsideration and also appealed to the Board. J.A. 477–
85. In response, the Board suspended the appeal and re-
manded the case to the examining attorney for reconsider-
ation. J.A. 531–33.
In June of 2021, the examining attorney considered
and denied Lipman’s request and again made the refusal
final. J.A. 657–62. The examining attorney based the re-
fusal on the similarity of the proposed mark and the cited
mark, the related nature of beer and restaurant services,
and the overlap of the relevant trade channels. J.A. 660–
61; J.A. 804–20.
In May of 2023, the Board affirmed the refusal to reg-
ister. J.A. 1–25. Lipman timely appealed. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(4)(B).
II
We review the Board’s legal conclusions de novo and its
factual findings for substantial evidence. Juice Generation,
Inc. v. GS Enters., LLC, 794 F.3d 1334, 1338 (Fed. Cir.
2015). A finding is supported by substantial evidence if a
reasonable mind might accept the evidence as adequate to
support the finding. Id.
Whether there is a likelihood of confusion between a
mark for which a registration application has been filed
and a registered mark is an issue of law based on underly-
ing facts. Jack Wolfskin Ausrustung Fur Draussen GmbH
& Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d
1363, 1370 (Fed. Cir. 2015). Relevant factual findings per-
taining to a likelihood of confusion correspond to the factors
set forth in In re E.I. DuPont DeNemours & Co., 476 F.2d
1357, 1361 (CCPA 1973). See also Jack Wolfskin, 797 F.3d
at 1370. The DuPont factors at issue in this appeal are
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IN RE: R. S. LIPMAN BREWING COMPANY , LLC 4
(1) the similarity of the marks and (2) the similarity of the
goods and services. See DuPont, 476 F.2d at 1361.2
III
We begin with the similarity of the marks. “Evaluating
the similarity between a registered mark and an appli-
cant’s mark requires examination of the appearance,
sound, connotation, and commercial impression of the two
marks.” In re Coors, 343 F.3d 1340, 1345 (Fed. Cir. 2003).
Lipman challenges two aspects of the Board’s analysis of
this DuPont factor.
A
First, Lipman argues that “the Board failed to appro-
priately weigh the evidence when determining that the
[c]ited [m]ark is ‘not a conceptually weak mark,’ and that
it should have ‘the normal scope of protection afforded a
registered mark.’” Appellant’s Br. 40 (quoting J.A. 9). Ac-
cording to Lipman, the Board should have weighed the ev-
idence in the record relating to (a) the suggestive nature of
the cited mark in view of the registrant’s restaurant ser-
vices and (b) the cited mark’s coexistence with the ’177 reg-
istration. Appellant’s Br. 40–46; see supra n.1.
Contrary to Lipman’s arguments, the Board did con-
sider Lipman’s argument that the cited mark was sugges-
tive because the registrant’s website indicated it provided
“chicken made from scratch.” J.A. 5–8. The Board also
considered Lipman’s argument that coexistence of the cited
mark with the ’177 registration rendered the cited mark
conceptually weak. J.A. 8–9. Ultimately, however, the
Board concluded that “CHICKEN SCRATCH” is not con-
ceptually weak and should be given “the normal scope of
2 Lipman does not challenge the Board’s findings re-
garding the third DuPont factor, the similarity of trade
channels. Appellant’s Reply Br. 11 n.6.
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IN RE: R. S. LIPMAN BREWING COMPANY , LLC 5
protection afforded a registered mark in view of definitions
of “chicken scratch” as meaning “bad handwriting” in dic-
tionaries cited by the Board. J.A. 4–5, 8. The dictionary
definitions cited by the Board provide substantial evidence
in support of the Board’s finding that the cited mark is not
conceptually weak.3 To the extent Lipman disagrees with
how the Board weighed the evidence, our court does not re-
view this aspect of the Board’s analysis on appeal. See In
re NTP, Inc., 654 F.3d 1279, 1292 (Fed. Cir. 2011) (“This
court does not reweigh evidence on appeal, but rather de-
termines whether substantial evidence supports the
Board’s fact findings.”).
B
Lipman next argues that substantial evidence does not
support the Board’s finding that the proposed mark and the
cited mark impart similar commercial impressions and
that this weighs in favor of a finding of likelihood of confu-
sion. As we explained in Coach Services, Inc. v. Triumph
Learning LLC, “[t]he proper test” to analyze the similarity
of marks, “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 con-
nection between the parties.” 668 F.3d 1356, 1368–69 (Fed.
3 Although Lipman’s brief implies that it was error
for the Board to rely upon dictionary definitions the Board
provided sua sponte, Lipman does not provide any mean-
ingful argument or cite applicable precedent in support of,
and thus has forfeited, this contention. Appellant’s Br. 41,
42; Reply Br. 13; see In re Killian, 45 F.4th 1373, 1386 (Fed.
Cir. 2022) (finding the appellant forfeited an argument on
appeal “by failing to present anything more than a conclu-
sory, skeletal argument”) (citing SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir.
2006)).
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IN RE: R. S. LIPMAN BREWING COMPANY , LLC 6
Cir. 2012) (internal citation and quotation marks omitted).
Lipman contends that the Board failed to consider the
marks’ commercial impressions in the context of the regis-
trant’s restaurant services and Lipman’s beer. Appellant’s
Br. 47–49. Lipman urges that the cited mark, in view of
the registrant’s restaurant menu, which “overwhelmingly
features” chicken dishes, therefore suggests chicken dishes
made from scratch. Id. at 51. In contrast, Lipman asserts,
the ’633 application is accompanied by a specimen showing
a “chicken pecking at the ground,” thereby “purposefully
play[ing] on the ingredients used to brew Lipman’s pilsner
beer—corn, barley, and grains—all commonly consumed by
chickens . . . .” Id. at 51–52.
We do not agree with Lipman that the Board’s finding
that the marks impart similar commercial impressions is
not supported by substantial evidence. First and foremost,
Lipman does not cite on appeal, nor did it provide to the
Board, any evidence showing that the mark CHICKEN
SCRATCH for beer brings chicken feed ingredients to the
minds of consumers. See Appellant’s Br. 51–52; J.A. 12.
Instead, Lipman provides only attorney argument and a
photograph of the ’633 application’s specimen, which in-
cludes a chicken graphic not included in the proposed
mark. In re i.am.symbolic, 866 F.3d 1315, 1324 (Fed. Cir.
2017) (“To the extent that Symbolic is advocating that we
consider another mark . . . that is not part of the applied-
for mark in analyzing the similarity of the marks, we de-
cline to do so. The correct inquiry requires comparison of
the applied-for mark . . . to the registrants’ marks.”); see
also Bristol-Myers Co. v. Pharmaco, Inc., 291 F.2d 756, 756
(CCPA 1961) (“We are, of course, primarily concerned with
the coverage of the competing application and registration
rather than with specimen labels which might or might not
subsequently vary.”) (citation omitted). Second, Lipman’s
evidence that the cited mark’s registrant’s restaurant
menu “overwhelmingly features” chicken dishes does not
establish that CHICKEN SCRATCH in this context brings
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IN RE: R. S. LIPMAN BREWING COMPANY , LLC 7
chicken dishes made from scratch to the mind of a con-
sumer. Appellant’s Br. 51.
Moreover, as the Board noted, even accepting Lipman’s
arguments, both marks convey some relation to “chicken,”
and thus have similar, or at least related, commercial im-
pressions. J.A. 13. Lipman does not dispute that the
marks are identical in sight, sound, and appearance. Ap-
pellant’s Br. 46. Substantial evidence thus supports the
Board’s finding that the first DuPont factor regarding the
similarity of the marks weighs strongly in favor of a likeli-
hood of confusion.
IV
We turn next to the similarity of the goods and services.
As our Court has explained:
[T]he fact that restaurants serve food and bever-
ages is not enough to render food and beverages re-
lated to restaurant services for purpose of
determining the likelihood of confusion. Instead
. . . 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.
In re Coors, 343 F.3d at 1345 (citing Jacobs v. Int’l Multi-
foods Corp., 668 F.2d 1234, 1236 (CCPA 1982) (internal
quotation marks omitted)).
On appeal, Lipman argues the Board failed to properly
apply the “something more” standard. That is, Lipman
contends that the Board erred because it affirmed the re-
jection of the proposed mark based on the same evidence
that our court found did not satisfy the “something more”
standard in Coors, a case that also involved beer and res-
taurants. Appellant’s Br. 19–20. Lipman also argues that
the Board’s finding of “something more” is not supported
by substantial evidence.
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IN RE: R. S. LIPMAN BREWING COMPANY , LLC 8
In Coors, the applicant sought to register the words
“Blue Moon” and an associated design for beer. 343 F.3d
at 1341. The examining attorney rejected the application
on the ground that the mark was likely to be confused with
the registered mark “Blue Moon and design” for restaurant
services, and the Board affirmed the refusal. Id. On ap-
peal, our court held that the Board’s finding that beer and
restaurant services are related was not supported by sub-
stantial evidence. Id. at 1345–46. While the evidence pro-
duced by the examining attorney showed that some
restaurants sell private label beer, the applicant had intro-
duced evidence illustrating that only 1,450 out of 815,000
total restaurants in the United States were brewpubs or
microbreweries (less than 0.18%). Id. at 1346. And while
the examining attorney had provided evidence of active
registrations identifying both beer and restaurant services,
there were only a “very small number” of such dual-use reg-
istrations. Id. Our court concluded that the evidence be-
fore the Board, including the evidence that “a tiny
percentage of all restaurants also serve as a source of beer,”
indicated that “the degree of overlap between the sources
of restaurant services and the sources of beer [wa]s de min-
imus.” Id. at 1347, 1346.
We are not persuaded that the Board failed to properly
apply the “something more” standard in this case. Lipman
points to similarities in the evidence cited by the examin-
ing attorneys in Coors and in the ’633 application. How-
ever, Lipman neglects that the record in the ’633
application, unlike the record in Coors, does not include
any evidence comparing the number of breweries providing
restaurant services to the total number of United States
restaurants. See J.A. 19 (noting that, in contrast to Coors,
“no such comparative evidence was made of record”).4
4 Lipman’s evidence indicating that there were 7,480
active small and independent operating U.S. breweries in
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IN RE: R. S. LIPMAN BREWING COMPANY , LLC 9
Here, the Board had before it 21 active registrations iden-
tifying both beer and restaurant services, 18 websites of
third party restaurants that serve their own beer under the
same mark as their restaurant, and nine articles and a
book discussing “brewpubs” as a subclass of breweries that
both sell their own beer and render restaurant services.
We thus see no legal error in, and determine that substan-
tial evidence supports, the Board’s finding that there is
“something more” than the fact that identical marks are
used for beer and restaurant services in this case.
CONCLUSION
We have considered Lipman’s remaining arguments
and find them unpersuasive.5 Accordingly, for the forego-
ing reasons, we affirm.
AFFIRMED
2019, J.A. 527, does not provide the comparative or contex-
tual evidence that was found to be significant in Coors. See
Appellant’s Reply Br. 10 (Lipman conceding that it “did not
provide current figures regarding the total number of res-
taurants nationwide”). We decline Lipman’s invitation to
accept as evidence in this case the number of restaurants
in the United States presented by Coors. See In re Nett
Designs, Inc., 236 F.3d 1339, 1342 (Fed. Cir. 2001) (“The
Board must decide each case on its own merits.”).
5 For example, having found that the Board’s
DuPont factor one and factor two findings are supported by
substantial evidence and having found that the Board did
not legally err in its DuPont factor two analysis, we need
not address Lipman’s argument that the Board erred in
balancing the DuPont factors. Appellant’s Br. 55–56.
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