Institut National de l'Origine et de la Qualité, Bureau National Interprofessionnel du Cognac v. Daret K. Dickens

This Opinion is Not a
Precedent of the TTAB
Mailed: March 2, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
_____
Trademark Trial and Appeal Board
_____
Institut National de l’Origine et de la Qualité and
Bureau National Interprofessionnel du Cognac
v.
Daret K. Dickens
_____
Opposition No. 91272506
_____
J. Scott Gerien and Joy L. Durand of Dickenson Peatman & Fogarty,
for Institut National de l’Origine et de la Qualité and Bureau National
Interprofessionnel du Cognac.
Todd Wengrovsky, Law Offices of Todd Wengrovsky PLLC for Daret K. Dickens.
_____
Before Lykos, Goodman and English,
Administrative Trademark Judges.
Opinion by English, Administrative Trademark Judge:
Applicant, Daret K. Dickens, seeks registration on the Principal Register of the
standard-character mark COGNAC LIFE for “magazine publishing” in International
Class 41.1
1 Application Serial No. 90280885 was filed on October 27, 2020 based on an allegation of an
intent to use the mark in commerce under Section 1(b) of the Trademark Act, 15 U.S.C.
§ 1051(b).

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Opposers, Bureau National Interprofessionnel du Cognac (“BNIC”) and Institut
National de l’Origine et de la Qualité (“INAO”), oppose registration of Applicant’s
mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), claiming priority
and likelihood of confusion with their common-law regional certification mark
COGNAC for brandy that comes from the Cognac region of France and is produced in
accordance with prescribed standards. Opposers also allege that COGNAC is a
famous regional certification mark, and that Applicant’s mark is likely to dilute
through blurring the COGNAC mark under Section 43(c) of the Trademark Act, 15
U.S.C. § 1125(c).2
2 In their Notice of Opposition, Opposers pleaded claims of lack of bona fide intent to use and
false suggestion of a connection but Opposers forfeited or waived these claims because they
failed to argue them in their brief. See Alcatraz Media, Inc. v. Chesapeake Marine Tours, Inc.,
No. 92050879, 2013 WL 5407315, at *2 (TTAB 2013) (petitioner’s pleaded descriptiveness
and geographical descriptiveness claims not argued in brief deemed waived), aff’d, 565 F.
App’x 900 (Fed. Cir. 2014) (mem.); Joel Gott Wines LLC v. Rehoboth Von Gott Inc., No.
91197659, 2013 WL 5407313, at *1 n.3 (TTAB 2013) (claim not argued in brief waived).
On the ESTTA coversheet to the notice of opposition, Opposers identified “dilution by
tarnishment” as an additional ground for opposition, but this claim was neither pleaded in
the body of the Notice of Opposition nor argued in Opposers’ brief. Thus, we do not consider
it.

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In his answer, Applicant admits the allegation that he “will not use the [COGNAC
LIFE] mark in association with brandy from of France.”3 Otherwise, Applicant denies
the salient allegations in the notice of opposition.4
The case is fully briefed.5 To prevail, Opposers must prove their entitlement to a
statutory cause of action and at least one of their claims by a preponderance of the
evidence. Genesco Inc. v. Martz, 91121296, 2003 WL 1154482, at *7 (TTAB 2003). For
the reasons explained below, we find Opposers have met their burden on entitlement
and their likelihood of confusion claim under Section 2(d) of the Trademark Act. We
thus sustain the opposition on this claim. We do not reach Opposers’ dilution by
blurring claim under Section 43(c) of the Trademark Act. See, e.g., McGowen Precision
Barrels, LLC v. Proof Rsch., Inc., No. 92067618, 2021 WL 2138663, at *2 (petition
granted on one ground; other claims not reached); Yazhong Investing Ltd. v. Multi-
Media Tech. Ventures, Ltd., No. 92056548, 2018 WL 2113778, at *13 n.52 (TTAB
2018) (Board has the “discretion to decide only those claims necessary to enter
judgment and dispose of the case”).
I. Opposers’ “Evidentiary” Objection
In their rebuttal brief, Opposers object to “the alleged facts and evidence raised
for the first time in Applicant’s Brief” regarding purported third-party registrations
3 5 TTABVUE 3, ¶ 7. Citations to the record throughout the decision include references to
TTABVUE, the Board’s online docketing system. The number preceding “TTABVUE”
corresponds to the docket entry number; any number(s) following “TTABVUE” refer to the
page number(s) of that particular docket entry.
Citations to Board decisions are to the Westlaw database. See TRADEMARK TRIAL AND APPEAL
BOARD MANUAL OF PROCEDURE (TBMP) § 101.03 (2025).

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for the marks CHAMPAGNE MAGAZINE and BOURBON+.6 Applicant did not
submit evidence of the referenced third-party registrations during his assigned trial
period. Absent a stipulation that is not present here, evidence may be introduced only
during the assigned trial periods. Trademark Rule 2.121(a), 37 C.F.R. § 2.121(a) (“No
testimony shall be taken or evidence presented except during the times assigned,
unless by stipulation of the parties approved by the Board, or upon motion granted
by the Board, or by order of the Board.”).
Opposers’ objection to Applicant’s assertions and arguments in his brief regarding
the purported third-party registrations is well-taken and sustained. “Attorney
argument is no substitute for evidence.” Cai v. Diamond Hong, Inc., 901 F.3d 1367,
1371 (TTAB 2018). We give no consideration to Applicant’s arguments based on the
purported third-party registrations not of record.7
4 5 TTABVUE. In his brief, Applicant argues a fair use defense. 18 TTABVUE 7, 10, 12.
Applicant did not plead such a defense, but even if he had, such a defense is not available
because Applicant seeks to register COGNAC LIFE as a service mark (i.e. a source identifier).
Truescents LLC v. Ride Skin Care, LLC, No. 91158556, 2006 WL 3326525, at *4 (TTAB 2006)
(fair use defense “legally unavailable” as to a Section 2(d) claim; the Board has jurisdiction
over registrability only, not use).
5 After final briefing, this case was suspended pending a final determination in Opposition
No. 91250532, involving Opposers’ opposition to a third-party application. 21 TTABVUE. The
Board’s decision in Opposition No. 91250532 was appealed to the Federal Circuit and
subsequently remanded. On July 28, 2025, the Board issued a final decision on remand and
no appeal was filed. The proceeding before us now was resumed on January 8, 2026. 24
TTABVUE.
We have reviewed the Federal Circuit’s decision in Opposition No. 91250532 as well as the
Board’s decision on remand and find that there is no need for re-briefing or supplemental
briefing in this case, which is now ready for decision.
6 19 TTABVUE 6-7.
7 Even if we had considered the arguments it would not change our decision here. Each case
must be decided on its own merits based on the particular facts of record. See, e.g., In re

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II. Record
The record includes the pleadings, the submissions of the parties during their
respective trial periods and, by rule, Applicant’s application file. See Trademark Rule
2.122(b)(1), 37 C.F.R. § 2.122(b)(1).8
We do not list the contents of the record, but we have reviewed and considered the
evidence in its entirety.9 See Sawstop, LLC v. Felder KG, No. 91255905, 2025 WL
2400134, at *2 (TTAB 2025); see also, Quiktrip W., Inc. v. Weigel Stores, Inc., 984 F.3d
1031, 1036 (Fed. Cir. 2021) (“We have held ‘on multiple occasions that failure to
explicitly discuss every issue or every piece of evidence does not alone establish that
the tribunal did not consider it.’” (quoting Novartis AG v. Torrent Pharms. Ltd., 853
F.3d 1316, 1328 (Fed. Cir. 2017))); In re Miracle Tuesday LLC, 695 F.3d 1339, 1348
(Fed. Cir. 2012) (“[T]he mere fact that the Board did not recite all of the evidence it
considered does not mean the evidence was not, in fact, reviewed.”) (citing Plant
Genetic Sys., N.V. v. Dekalb Genetics Corp., 315 F.3d 1335, 1343 (Fed. Cir. 2003))).
Shinnecock Smoke Shop, 571 F.3d 1171, 1174 (Fed. Cir. 2009); In re Nett Designs Inc., 236
F.3d 1339, 1342 (Fed. Cir. 2001). We are not bound by prior determinations of the Office
concerning different marks based on different records.
8 The parties also filed a stipulation “to the authenticity” of “copies of editions of a magazine
entitled COGNAC LIFE that is offered for sale by Applicant.” Stip., 7 TTABVUE.
9 To the extent evidence has been designated confidential, we address it generally in this
opinion.

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III. Geographic Certification Marks
Because Opposers have pleaded ownership of a geographic certification mark, also
known as a certification mark indicating regional origin, it is useful to provide a short
discussion of such marks.
Section 45 of the Trademark Act defines a certification mark to include “any word,
name, symbol, or device, or any combination thereof … used by a person other than
its owner … to certify regional … origin … of such person’s goods or services… .” 15
U.S.C. § 1127. See In re St. Julian Wine Co., No. 87834973, 2020 WL 2788005 (TTAB
2020) (involving registered marks MICHIGAN APPLES (stylized with design,
“apples” disclaimed) and MICHIGAN HONEYCRISP (stylized with design,
“honeycrisp” disclaimed) to certify apples grown in Michigan); Luxco, Inc. v. Consejo
Regulador del Tequila, A.C., No. 91190827, 2017 WL 542344 (TTAB 2017) (involving
application to register TEQUILA to certify spirits distilled from blue tequilana weber
variety of agave plant of Mexican origin); Swiss Watch Int’l, Inc. v. Fed. of the Swiss
Watch Ind., No. 92046786, 2012 WL 504693 (TTAB 2012) (involving registered marks
SWISS and SWISS MADE to certify watches, clocks and their components made in
Switzerland).
Section 4 of the Trademark Act provides for the registration of “certification
marks, including indications of regional origin.” 15 U.S.C. § 1054. Opposers have not
registered the COGNAC certification mark, but instead rely on prior common law
rights in COGNAC as an unregistered certification mark. Bureau Nat’l
Interprofessionnel Du Cognac v. Int’l Better Drinks Corp., No. 91072088, 1988 WL

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252488, at *6 (TTAB 1988) (involving unregistered mark COGNAC for distilled
brandy from a region in France) (citing Stabilisierrungsfonds fur Wein v.
Zimmermann-Graeff KG, 1978 WL 21772, at *2 (TTAB 1978)10 (“A federal
registration is merely the recognition of a common law right in a mark that existed
prior to registration. Section 45 of the Act includes the term ‘certification mark’ in its
definition of ‘mark’.”)).
A certification mark, as distinguished from a trademark, does not indicate
commercial source or distinguish the goods or services of one person from those of
another person, but “indicates that the goods or services of authorized users are
certified as to a particular aspect of the goods or services.” St. Julian Wine, 2020 WL
2788005, at *2 (citing 15 U.S.C. §§ 1054, 1127 and the TRADEMARK MANUAL OF
EXAMINING PROCEDURE (TMEP) § 1306.01 (Nov. 2025)); see also In re Nat’l Ass’n of
Veterinary Technicians in Am., Inc., No. 87171093, 2019 WL 3246967, at *2 (TTAB
2019). “The message conveyed by a certification mark is that the goods or services
have been examined, tested, inspected, or in some way checked by a person who is
not their producer, using methods determined by the certifier/owner ... [and] that the
prescribed characteristics or qualifications of the certifier for those goods or services
have been met.” TMEP § 1306.01(b).
Geographic certification marks are used to certify that authorized users’ goods
originate in a specific geographic region. See, e.g., St. Julian Wine, 2020 WL 2788005,
at *2 (MICHIGAN APPLE composite marks for apples grown in the state of
10 Proceeding number not available.

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Michigan); Luxco, 2017 WL 542344 (involving application to register TEQUILA to
certify spirits distilled from blue tequilana weber variety of agave plant of Mexican
origin); Swiss Watch, 2012 WL 504693 (involving registered marks SWISS and
SWISS MADE to certify watches, clocks and their components made in Switzerland).
IV. COGNAC is a Certification Mark Indicating Regional Origin
Opposers submitted the declaration of Amandine Duthilleul, “an attorney
employed” by BNIC, who testified that:11
2. [INAO] is an administrative agency within the French
Ministry of Agriculture, Food and Forestry. For over eighty
years, INAO has been responsible for establishing,
maintaining and protecting, both in France and
internationally, France’s “appellations of origin” and
“geographical indications” system.
3. … COGNAC is a well-known AOC [“appellation of controlled
origin”] that has been recognized and protected by INAO and
the French government for decades.
5. The COGNAC AOC is used to represent to consumers that a
product bearing the COGNAC AOC comes from a defined
region of France and was produced in accordance with the local
and customary production method now codified in the various
Decrees of the Republic of France relating to the production of
products bearing the COGNAC AOC.
9. The AOC system is characterized by cooperation between the
INAO, producers and merchants, and their interprofessional
associations or unions which are known as “interprofessions.”
10. BNIC is the interprofessional union of all growers and
producers and negociants or merchants who grow, produce or
deal in COGNAC eaux-de-vie de vin (which is French for “wine
spirit”) as defined by Article L631-1 et seq. of the French Rural
Code. All parties who are engaged in the production, processing
11 Duthilleul Decl., 9 TTABVUE 2-5.

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and trade of COGNAC are required by law to be a member of
BNIC.
15. BNIC also fulfills a number of public functions, such as
monitoring stocks of COGNAC, verifying the age of COGNAC
and issuing certificates of age and origin. Certificates of origin
certify that the COGNAC product has met the exacting
standards governing the COGNAC AOC and must accompany
every shipment of COGNAC outside of the European Union. In
this way, BNIC controls the COGNAC certification mark in the
U.S. for wine spirits.
We find this testimony clear and definite, and thus, sufficient to prove that
COGNAC functions as a geographic certification mark to indicate that brandy
bearing the COGNAC mark has met the standards governing the COGNAC
“appellation of controlled origin.” Cf. Exec. Coach Builders, Inc. v. SPB Coach Co., No.
91212312, 2017 WL 3034059, at *11 (TTAB 2017) (“The oral testimony even of a
single witness may be adequate to establish priority, but only if it is sufficiently
probative.”).
V. Entitlement
Entitlement to a statutory cause of action must be established in every inter
partes case. Australian Therapeutic Supplies Pty. Ltd. v. Naked TM, LLC, 965 F.3d
1370, 1373 (Fed. Cir. 2020) (citing Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118, 128 n.4 (2014)). Where, as here, there are multiple opposers, each
opposer must prove its own entitlement. Int’l Dairy Foods Ass’n v. Interprofession du
Gruyère and Syndicat Interprofessionnel du Gruyère, No. 91232427, 2020 WL
4559436, at *10 (TTAB 2020) (each opposer must prove its entitlement), aff’d,
Interprofession du Gruyère v. U.S. Dairy Exp. Council, 575 F. Supp. 3d 627 (E.D. Va.

Opposition No. 91272506
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2021) aff’d, Interprofession du Gruyère v. U.S. Dairy Exp. Council, 61 F.4th 407 (4th
Cir. 2023).
To demonstrate entitlement, each Opposer must prove that its claims are within
the zone of interests protected by the statute (i.e., it has a “real interest” in the
outcome of the proceeding) and that it has a reasonable belief in damage that is
proximately caused by registration of the mark (i.e., it has a reasonable basis for its
belief in damage). Corcamore, LLC v. SFM, LLC, 978 F.3d 1298, 1305-06 (Fed. Cir.
2020).
Ms. Duthilleul testified that “Opposers are responsible for protecting the
COGNAC AOC from misuse and appropriation both in France and internationally,
including in the US.”12 Specifically, INAO is a French administrative agency
“responsible for establishing, maintaining and protecting, both in France and
internationally, France’s ‘appellations of origin,’” (AOC), including the COGNAC
AOC.13 “The AOC system is characterized by cooperation between the INAO,
producers and merchants, and their interprofessional associations or unions which
are known as ‘interprofessions.’”14 BNIC is the interprofessional union of all growers,
producers and merchants of COGNAC brandy.15 “All parties who are engaged in the
production, processing and trade of COGNAC are required by law to be a member of
12 9 TTABVUE 9, ¶ 29.
13 Id. at 2-3, ¶¶ 2-4.
14 Id. at 4, ¶ 9.
15 Id. at ¶ 10.

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BNIC.”16 BNIC controls the COGNAC certification mark in the U.S. by monitoring
the stock and verifying the age of COGNAC brandy and issuing certificates of age and
origin for COGNAC brandy that meets the COGNAC AOC standards.17
Based on the foregoing testimony, we find that INAO and BNIC have each proven
a real interest in the outcome of this proceeding and a reasonable basis for a belief in
damage if Applicant’s mark is registered.18 Bureau Nat’l Interprofessionnel Du
Cognac v. Int’l Better Drinks, 1988 WL 252488, at *6 (finding entitlement based on
“legal duty to oversee the production and sale of ‘COGNAC’ brandy and to protect the
significance of the designation ‘COGNAC’ as an appellation of origin for brandy”).
Each Opposer thus has established its entitlement to bring this statutory cause of
action.
VI. Likelihood of Confusion
Priority
To establish prior common law rights in the COGNAC certification mark,
Opposers must prove by a preponderance of the evidence that the COGNAC mark
was distinctive and in use as a certification mark before the earliest priority date on
16 Id.
17 Id. at 5, ¶ 15.
18 Applicant argues that his “usage of the term COGNAC is not negative or pejorative in any
way, and would cause no damage or harm to the Opposer[s] at all.” Applicant’s Brief, 18
TTABVUE 7. Opposers, however, need not prove actual damage to establish their entitlement
to a statutory cause of action. See, e.g., Montecash LLC v. Anzar Enters. Inc., No. 92051768,
2010 WL 1847596, at *2 (TTAB 2010) (“[T]here is no requirement that any actual ‘damage’
be pled or proved to establish standing,” now referred to as entitlement to a statutory cause
of action).

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which Applicant may rely. See DeVivo v. Ortiz, No. 91242863, 2020 WL 1227592, at
*3-4 (TTAB 2020); Exec. Coach Builders, 2017 WL 3034059, at *6 (“[B]ecause
unregistered marks are not entitled to the presumptions established under
Trademark Act Section 7(b)-(c), it is Opposer’s burden to demonstrate that it owns a
trademark that was used prior to Applicant’s first use or constructive use of its mark
and not abandoned.”). In assessing whether Opposers have established common law
priority, we consider the evidence of record as a whole. W. Fla. Seafood, Inc. v. Jet
Rests., Inc., 31 F.3d 1122, 1125-26 (Fed. Cir. 1994) (“[O]ne should look at the evidence
as a whole, as if each piece of evidence were part of a puzzle which, when fitted
together, establishes prior use.”).
The COGNAC certification mark is inherently “distinctive because it serves to
designate and certify the particular geographic origin of the relevant goods.” St. Julian
Wine, 2020 WL 2788005, at *7; cf id. (“[P]er Section 2(e)(2) of the Trademark Act, a
registered certification mark containing a geographic designation that functions to
certify regional origin is not considered geographically descriptive.”); see also Tea Bd.
of India v. Republic of Tea Inc., No. 91118587, 2006 WL 2460188, at *21 (TTAB 2006)
(“[W]e consider DARJEELING inherently distinctive as a certification mark
indicating geographic origin as it inherently identifies the geographic source of the
tea.”).
As discussed more fully in Section V.B.1 below, the record further shows that third
parties controlled by Opposers have been using the COGNAC certification mark, long

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before Applicant’s October 27, 2020 application filing date19 (i.e. constructive use
date), which is the earliest date Applicant may rely on for priority. The record shows
that he does not use his mark to provide the identified service of “magazine
publishing” to other parties but rather uses his mark as the title of a magazine, a good
that is not identified in the involved application.20 We therefore find that Opposers
have established priority.
Likelihood of Confusion
The test for determining likelihood of confusion with respect to certification marks
is the same as that applied to trademarks, i.e., the DuPont analysis derived from the
seminal case setting forth possible probative factors. In re Accelerate s.a.l., No.
77522433, 2012 WL 684459, at *1 (TTAB 2012) (citing Motion Picture Ass’n of Am.,
Inc. v. Respect Sportswear, Inc., No. 75654662, 2007 WL 1144942, at *4 (TTAB 2007)).
We have considered each DuPont factor for which there is evidence and argument of
record. See In re Guild Mortg. Co., 912 F.3d 1376, 1379 (Fed. Cir. 2019); see also Apex
Bank v. CC Serve Corp., 156 F.4th 1230, 1234 (Fed. Cir. 2025). Varying weights may
be assigned to each DuPont factor depending on the evidence presented. Citigroup
Inc. v. Capital City Bank Grp. Inc., 637 F.3d 1344, 1355 (Fed. Cir. 2011); see also In
re Charger Ventures, 64 F.4th 1375, 1381 (Fed. Cir. 2023) (“In any given case,
19 Duthilleul Decl., ¶ 32, 9 TTABVUE 10.
20 Durand Decl., 8 TTABVUE 4, 69-70, 80, ¶ 13 and Exhibit L (Admission of Request for
Admission Nos. 16-17, 21).

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different … factors may play a dominant role and some factors may not be relevant
to the analysis.”) (citation omitted).
1. Commercial Strength or Fame of the COGNAC Certification Mark
The fifth DuPont factor involves “[t]he fame of the prior mark (sales, advertising,
length of use).” DuPont, 476 F.2d at 1361. The fame or commercial strength of a mark
is not a binary factor, but varies along a spectrum from very strong to very weak. Id.
at 1366; Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323,
1325 (Fed. Cir. 2017); Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 1340
(Fed. Cir. 2015). “Where on that spectrum a mark falls impacts its scope of
protection.” Bureau Nat’l Interprofessionel du Cognac v. Cologne & Cognac Ent., 110
F.4th 1356, 1366 (Fed. Cir. 2024).
Fame for likelihood of confusion purposes arises only so long as a “significant
portion of the relevant consuming public ... recognizes the mark as a source indicator,”
Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 369 F.3d
1369, 1375(Fed. Cir. 2005), or, more precisely stated for the context of the mark at
issue here, as an indicator that the brandy bearing the mark comes from the Cognac
region of France. Bureau Nat’l Interprofessionel du Cognac v. Cologne & Cognac Ent.,
110 F.4th at 1366 (explaining that in considering fame under the fifth DuPont factor,
the issue is not whether the COGNAC certification mark is famous or commercially
strong for its certification function, but rather whether the COGNAC mark is famous
or commercially strong as an indicator of its geographic origin). A finding that a mark
is famous plays a dominant role in a likelihood of confusion analysis because of the

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broad scope of protection afforded famous marks. Id. at 1365-66; Recot, Inc. v. Becton,
214 F.3d 1322, 1327-28 (Fed. Cir. 2000) (“Famous marks are accorded more protection
precisely because they are more likely to be remembered and associated in the public
mind than a weaker mark. … Accordingly, we hold that the fame of the mark must
always be accorded full weight when determining the likelihood of confusion.”);
Kenner Parker Toys Inc. v. Rose Art Indus., Inc., 963 F.3d 350, 352 (Fed. Cir. 1992)
(“The fifth duPont factor, fame of the prior mark, plays a dominant role in cases
featuring a famous or strong mark. Famous or strong marks enjoy a wide latitude of
legal protection.”).
The record shows that “[t]he COGNAC product was first exported to the [United
States] in 1794 and has been continuously sold in the US since such time.”21 The
number of brandy bottles bearing the COGNAC certification mark imported into the
United States, and their approximate value, are set forth below for the years 2018 to
2022.22
Year Number of COGNAC bottles
shipped to the U.S.
Approximate Value of Bottles
2018 87,400,000 $1,367,400,000
2019 102,400,000 $1,803,900,000
2020 103,500,000 $1,504,800,000
2021 115,000,000 $1,977,100,000
2022 117,900,000 $2,052,300,000
21 Duthilleul Decl., 9 TTABVUE 10, ¶ 32.
22 Id. at 11, ¶ 32.

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In 2021, the U.S. was the largest market for COGNAC products “with over 51.5% of
the world market share.”23
Figures for prior years (from 2007 to 2017) show imports to the United States of
COGNAC brandy ranging from a low of approximately 43 million bottles in 2009 with
an approximate value of nearly half a billion dollars and increasing consistently to a
high of more than 82 million bottles in 2017 valued at more than $1.3 billion.24 We
find that the annual volume and approximate value of COGNAC brandy imported to
the U.S. since 2007 is substantial.
As for advertising, “BNIC and its members have spent millions of dollars
advertising and promoting COGNAC throughout the [United States] resulting in
billions of media impressions. Between 2010 and 2022, BNIC alone spent more than
$5.2 million promoting COGNAC in the [United States] resulting in more than 1.8
billion media impressions.”25 BNIC’s U.S. marketing activities include “media and
trade relations, events, and robust social media campaigns” that “focus on showcasing
and promoting the COGNAC geographical indication and creating awareness about
the regions’ history, terroir, and product range expertise among US consumers.”26
23 Id.
24 Id.
25 Id. at ¶ 33.
26 Id. at 12, ¶ 34. Opposers have filed under seal summaries of specific marketing activities
from March 1, 2019 through May 2022 reflecting extensive U.S. consumer exposure to such
marketing efforts. Duthilleul Decl., 12 TTABVUE 13-16, ¶¶ 37-40 (confidential). Although
marketing is by its nature public, we find the metrics Opposers have gathered and provided
are properly designated confidential.

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“Since 2010, BNIC has cultivated a worldwide Cognac Educator program which
certifies professionals and leaders in the spirits industry who are committed to
educating consumers about COGNAC culture, spreading COGNAC knowledge and
promoting the COGNAC appellation” and who “regularly lead COGNAC
masterclasses and tastings, as well as other initiatives, for bartenders, wine
merchants, distributors, importers and media in the US.”27 As of September 30, 2002,
the date of the Duthilleul Declaration, BNIC had “ten Certified Cognac Educators in
the US located in key markets like San Francisco, San Diego, Portland, New York,
Atlanta, Boston, Chicago, Las Vegas and Washington, DC.”28
Further, since 2017, BNIC has worked with “an award-winning food, wine and
spirits public relations and marketing agency based in New York City,” on a “robust”
marketing campaign with “programming includ[ing] multi-city trade, media and
influencer education events” and the development of “the Cognac Connection: a
virtual platform designed to educate and inspire trade and media professionals about
COGNAC. The campaign also includes an annual COGNAC-based cocktail
competition for professional bartenders called the Cognac Connection Challenge. …
Since 2020, hundreds of US bartenders have participated in the Cognac Connection
Challenge.”29
27 Duthilleul Decl., 9 TTABVUE 12, ¶ 35.
28 Id.
29 Id. at ¶ 36.

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Certified COGNAC wine spirts have garnered publicity “in countless publications”
throughout the United States, including THE NEW YORK TIMES, THE WASHINGTON
POST, THE WALL STREET JOURNAL, WINE SPECTATOR, THE LOS ANGELES TIMES,
CBS.com, Forbes.com, FoxNews.com, WINE ENTHUSIAST, and THE ATLANTIC.30 “From
March 2019 to February 2022 alone, COGNAC was featured or mentioned in over 507
articles with an aggregate circulation of over 988 million.”31
Excerpts from representative articles are set forth below:32
• “It was a weekend to remember for hip-hop star Jay-Z … [a]ttending a socially
distanced Grammy’s event on Sunday night … as he racked up his 23rd
Grammy, while his wife Beyoncé, took home her 28th trophy, making her the
Recording Academy’s most-decorated female artist of all time. Meanwhile, on
the East Coast, one of Jay-Z’s limited-edition Cognac bottles raised $52,500 for
charity.” Cognac State of Mind: Rare Brandies from Jay-Z and Frank Gehry
Raise Funds for Charity, WINE SPECTATOR, Mar. 18, 2021.
• Usher “the eight-time Grammy winner is making a big splash with his new
Rémy Martin partnership, encompassing a (very) limited-edition Cognac and
accompanying NFT as well as a ‘multi-sensory immersive experience’ in
association with the artist’s My Way Las Vegas residency at Park MGM.”
Smooth Duet: Usher and Rémy Martin Cognac, WINE SPECTATOR, Sept. 6, 2022.
• With his 2002 chart buster “Pass the Courvoisier,” Busta Rhymes helped
cognac cast off its musty, buttoned up image, restoring it as the liquor of the
hip and fabulous. Since then, it has become one of the country’s fastest growing
premium spirits, with sales spiking 23 percent from 2002 to 2006. … The four
behemoth cognac houses – Courvoisier, Hennessy, Martell, and Rémy Martin
– date back far enough to be legends in their own right, and their mystique
endures…. A Taste for the Ages[,] Hip Once Again, Cognac Enjoys Spirited
Rebirth, THE BOSTON GLOBE (Boston.com) Jan. 17, 2008.
• “In the course of its centuries-long life Cognac has been considered a drink for
30 Id. at 16-17, ¶ 41.
31 Id.
32 Id. at 118-22, 131, 134, 142, 150-51; Duthilleul Decl., 10 TTABVUE 18, 20, 32, 60;
Duthilleul Decl., 11 TTABVUE 75-76, 92-93.

Opposition No. 91272506
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the poor, an exclusive property of upscale gentlemen’s clubs and a symbol of
hip-hop excess. At present, Cognac distillers draw from all facets of this varied
past to create some of the finest tasting and most exclusive liquors on the
plant.” Top 10 Cognacs, FOX NEWS (FoxNews.com), Mar. 20, 2018.
• “Cognac used to have a reputation as an old man’s drink, but the French
brandy is enjoying a revival. … A shift began in 2001, when rap artist Busta
Rhymes came out with his hit song, ‘Pass the Courvoisier.’ … [The song] ‘was
huge for the brand,’ [said Courvoisier’s marketing manager], ‘because it went
on all the big hit lists.” French Cognac Maker Gets a Boost from Rap Music,
NPR, Jan. 2, 2009.
• “Courvoisier has been an iconic house of [Cognac brandy] for the best part of
200 years, served across the royal court of Europe and at legendary moments
in history such as the opening of the Eiffel tower.” Jon Potter, Maison
Courvoisier, Why Cognac’s Best Years are Still Ahead, FORBES.COM, June 11,
2022.
• “And how about Remy Martin’s legendary LOUIS XIII [Cognac brandy]?
Packaged in a stunning bespoke crystal – capped by a fleur-de-lis topper—it is
perhaps the most recognized ultra-luxury offering atop any backbar.” Your
Favorite Cognac is About to Get a Lot More Expensive, Forbes.com, Jan. 12,
2021.
• “Classic meets contemporary as one of the most historic cognac houses, Martell
Cognac, teams with one of the most cultivated leasers of the new generational
hip-hop and cultural powerhouse, Quavo.” Quavo and Martell Cognac Join
Forces for the Culture with ‘Make Your Statement’ Movement, BET.com, Dec.
21, 2018.
In addition to unsolicited media coverage, since 2018 BNIC has published a digital
magazine “called Culture Cognac at culture.cognac.fr. … dedicated to sharing the
culture around COGNAC with connoisseurs and consumers, and promoting the
COGNAC certification mark.”33 Copies of the digital magazine in the English
language are attached to Ms. Duthilleul’s declaration.34
33 Duthilleul Decl., 9 TTABVUE 17, ¶ 42.
34 Duthilleul Decl., 10 TTABVUE 144-53 (Exhibit F).

Opposition No. 91272506
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Notably, COGNAC brandy also has been the subject of numerous books including:
COGNAC: THE STORY OF THE WORLD’S GREATEST BRANDY (published in 2013) by
Nicholas Faith; COGNAC: THE SEDUCTIVE SAGA OF THE WORLD’S MOST COVETED SPIRIT
(© 2005) by Kyle Jarrard; THE WORLD OF COGNAC (published in 2017) by Michelle
Brachet; COGNAC: A LIQUID HISTORY by Salvatore Calabrese; THE COGNAC
COMPANION - A CONNOISSEUR’S GUIDE by Conal Gregory; and THE LITTLE BOOK OF
COGNAC by Christian Pessey.35 Representative excerpts from two of these books are
below.36
• “Historically in the United States, African-American consumers have
always been the driving force behind VS cognac sales. This is probably
due to soldiers in Vietnam (a former French colony) mixing cognac with
soda or coke to dilute it in the hot and humid conditions … These soldiers
returned home with the idea that cognac had a very high social status….
For many years, cognac has gone hand in hand with black American
urban culture, and particularly hip hop.” THE WORLD OF COGNAC.
• “Often expensive, Cognac is always classy. … Elegant, because it is an
indisputable symbol of high refinement[.]” THE SEDUCTIVE SAGA OF THE
WORLD’S MOST COVETED SPIRIT.
Of further significance, COGNAC is defined in three dictionaries and
ENCYCLOPEDIA BRITANNICA as meaning a brandy from a specific region in France:37
MERRIAM-WEBSTER: “[N]oun, often capitalized”; “a brandy from the
departments of Charente and Charente-Maritime distilled from white
wine”;
35 Duthilleul Decl., 9 TTABVUE 18, ¶ 45. The publication/copyright dates are identified only
for the first three books for which excerpts were introduced. These books were purchased
from Amazon.com by Joy Durand, one of Opposers’ attorneys. Durand Decl., 8 TTABVUE 3,
29-55, ¶¶ 6-8.
36 Id. at 30, 38, 53.
37 Id. at 57-63.

Opposition No. 91272506
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COLLINS ENGLISH DICTIONARY: “Cognac is a type of brandy made in the
south-west of France”;
MACMILLAN DICTIONARY: “[A] type of brandy made in France, or a glass
of this brandy”; and
ENCYCLOPEDIA BRITANNICA (published Mar. 19, 2020): “[C]ognac, a
brandy produced in the Charente and Charente-Maritime départments
of France and named for the town of Cognac in the locality. French law
limits the use of the name to brandy made from the wine of a specified
grape variety, distilled twice in special alembics, or pot stills, and aged
for a prescribed period in Limousin oak.”
The dictionary definitions and encyclopedia entry support that consumers are
likely to recognize COGNAC as an indicator that brandy bearing the mark comes
from the Cognac region of France. Cf. Luxco, 2017 WL 542344, at *10 (explaining that
dictionary definitions and encyclopedia entries identifying Tequila as an alcoholic
beverage from Mexico tended “to show that Tequila has significance as a designation
of geographic origin” and is not generic for such goods).
We find the evidence of record, summarized above, demonstrates that a significant
portion of the relevant consuming public recognizes the COGNAC certification mark
as indicating that brandy bearing the mark comes from the Cognac region of France,
and falls on the high end of the fame spectrum as an indicator of geographic origin
for purposes of the fifth DuPont factor, and therefore enjoys a wider than normal
scope of protection.
The fifth DuPont factor thus weighs heavily in favor of finding a likelihood of
confusion.

Opposition No. 91272506
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2. 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.” DuPont, 476 F.2d at 1361; see also Stone Lion Cap. Partners, L.P. v. Lion
Cap. LLC, 746 F.3d 1317, 1319 (Fed. Cir. 2014). “Similarity is not a binary factor but
is a matter of degree.” In re St. Helena Hosp., 774 F.3d 747, 752 (Fed. Cir. 2014).
The proper test regarding similarity “is not a side-by-side comparison of the mark,
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.” Cai v. Diamond Hong, 901 F.3d at 1373 (quoting
Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 1368 (Fed. Cir. 2012)).
The focus is on the recollection of an ordinary consumer, who normally retains a
general rather than specific impression of trademarks. In re Bay State Brewing Co.,
No. 85826258, 2016 WL 1045677, at *2 (TTAB 2016); see also Geigy Chem. Corp. v.
Atlas Chem. Indus., Inc., 438 F.2d 1005, 1007 (CCPA 1971) (statute “requires us to
consider, among other things, the fallibility of memory over a period of time, not
merely whether one can distinguish the marks at a given moment”).
We do not predicate our analysis on a dissection of the involved marks; we consider
the marks in their entireties. Stone Lion, 746 F.3d at 1321; see also Franklin Mint
Corp. v. Master Mfg. Co., 667 F.2d 1005, 1007 (CCPA 1981) (“It is axiomatic that a
mark should not be dissected and considered piecemeal; rather, it must be considered
as a whole in determining likelihood of confusion.”). On the other hand, “there is
nothing improper in stating that, for rational reasons, more or less weight has been

Opposition No. 91272506
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given to a particular feature of a mark, provided the ultimate conclusion rests on
consideration of the marks in their entireties.” In re Nat’l Data Corp., 753 F.2d 1056,
1058 (Fed. Cir. 1985); see also Charger Ventures LLC, 64 F.4th at 1382.
We find that the term COGNAC in Applicant’s mark is dominant and the
additional term LIFE in Applicant’s mark does not sufficiently distinguish Applicant’s
mark from Opposers’ mark in any meaningful way.
Specifically with respect to appearance, we find the fact that Applicant has
incorporated Opposers’ famous COGNAC certification mark in its entirety as the first
word in Applicant’s mark will draw consumers visually to that part of Opposers’ mark.
In re Detroit Athletic Co., 903 F.3d 1297, 1303 (Fed. Cir. 2018) (finding lead words
dominant); Hunter Indus., Inc. v. Toro Co., No. 85067325, 2014 WL 1649332, at *11
(TTAB 2014) (“Likelihood of confusion often has been found where the entirety of one
mark is incorporated within another.”); Presto Prods. Inc. v. Nice-Pak Prods. Inc., No.
91074797, 1988 WL 252340, at *3 (TTAB 1988) (“[I]t is often the first part of a mark
which is most likely to be impressed upon the mind of a purchaser and
remembered[.]”); cf. Wella Corp. v. Cal. Concept Corp., 558 F.2d 1019, 1022 (CCPA
1977) (“When one incorporates the entire arbitrary mark of another into a composite
mark, the inclusion of a significant, nonsuggestive element will not necessarily
preclude a likelihood of confusion.”). We further find that because Opposer’s COGNAC
mark is the first word in Applicant’s mark, the marks share a similar sound, despite
the additional second word LIFE in Applicant’s mark.

Opposition No. 91272506
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With respect to connotation and commercial impression, Applicant admits that
“the term ‘Cognac’ featured in the COGNAC LIFE Mark refers to the brandy beverage
Cognac,”38 and given the fame of the COGNAC certification mark, we find that
consumers are likely to understand the word COGNAC in Applicant’s mark as a
reference to brandy from the Cognac region of France. The record supports that
consumers have been exposed to sources touting COGNAC brandy as a lifestyle
product – a symbol of luxury, affluence, and sophistication – and describing COGNAC
brandy as a popular drink in rap and hip hop culture.39 Consumers therefore are likely
to associate the COGNAC certification mark with such lifestyles. The addition of the
second word LIFE in Applicant’s COGNAC LIFE mark thus reinforces and highlights
the connotation and commercial impression of the COGNAC mark with certain
lifestyles, and thus, the parties’ marks are quite similar in connotation and
commercial impression.
In sum, when we compare the marks in their entireties, see Jack Wolfskin
Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797
F.3d 1363, 1371 (Fed. Cir. 2015), we find they are similar in appearance and sound,
and very similar in connotation and commercial impression. The first DuPont factor
heavily weighs in favor of finding confusion likely.
38 Durand Decl., ¶ 13 and Exhibit L, 8 TTABVUE 4, 68, 79 (Admission of Request for
Admission No. 3).
39 See, e.g., examples on pages 18-20 above. To be clear, we do not consider any of the
materials for the truth of their contents, but rather we consider them to show the types of
descriptions of COGNAC brandy to which consumers have been exposed.

Opposition No. 91272506
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3. Relatedness of the Goods and Services
We next address the similarity or dissimilarity and nature of the parties’ goods
and services under the second DuPont factor. DuPont, 476 F.2d at 1361. “This factor
considers whether ‘the consuming public may perceive [the respective goods and
services of the parties] as related enough to cause confusion about the source or origin
of the goods or services.’” St. Helena Hosp., 774 F.3d at 752 (quoting Hewlett-Packard
Co. v. Packard Press, Inc., 281 F.3d 1261, 1267 (Fed. Cir. 2002)).
We first address the goods and services at issue in our comparison. Because
Opposers’ mark is a regional certification mark, it is not used by its owners, 15 U.S.C.
§ 1127, but is instead used by authorized users. Thus, the parties’ correctly base their
comparison under the second DuPont factor on the authorized users’ goods, namely,
brandy from the Cognac region of France produced in accordance with prescribed
standards. St. Julian Wine, 2020 WL 2788005, at *4 (citing E. I. DuPont de Nemours
& Co. v. Yoshida, 393 F. Supp. 502, 516 (E.D.N.Y. 1975) (“proximity [of products] may
be measured against that of the certification mark user...”)). The parties, however,
incorrectly treat the involved application as covering “magazines” instead of
“magazine publishing” services, as identified in the application.
As explained in the USPTO’s Acceptable Identification of Goods and Services
Manual (ID Manual), “magazine publishing”
refers to the service of publishing the periodicals or printed
matter of others. Note that the publication of one’s own
periodical or printed matter is not a service because it is
done primarily for applicant’s own benefit and not for the

Opposition No. 91272506
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benefit of others. Rather, it would be considered goods in
Class 16, e.g., newspapers, magazines.40
Under the second DuPont factor we therefore must consider whether goods, namely,
brandy from the Cognac region of France, are related to Applicant’s services of
“magazine publishing” for others.
“[I]t is recognized that goods and services may be related.” In re Giovanni Food
Co., No. 77796257, 2011 WL 810217, at *2 (TTAB 2011) (citing In re United Serv.
Distribs., Inc., No. 73433634, 1986 WL 83661 (TTAB 1986) (mark for distributorship
services in the field of health and beauty aids held likely to cause confusion with mark
for skin cream)). Moreover, it is well established that the goods and services need not
be similar or competitive, or even offered through the same channels of trade, to
support a holding of likelihood of confusion. Weider Publ’ns, LLC v. D&D Beauty Care
Co., No. 91199352, 2014 WL 343269, at *10 (TTAB 2014) (SHAPES for a variety of
beauty salon, day spa, and health spa services likely to cause confusion with SHAPE
for magazines where the services are of the type normally featured in the magazines).
“Instead, likelihood of confusion can be found ‘if the respective products are related
in some manner and/or if the circumstances surrounding their marketing are such
that they could give rise to the mistaken belief that they emanate from the same
source.’” Coach Servs., 668 F.3d at 1369 (quoting 7-Eleven Inc. v. Wechsler, No.
91117739, 2007 WL 1431084, at *10 (TTAB 2007)). The issue, of course, is not
40 https://idm-tmng.uspto.gov/id-master-list-public.html (search for “magazine publishing”);
see also Trademark Trial and Appeal Board Manual of Procedure (TMEP) § 1301.01(b)(iii)
(Nov. 2025).

Opposition No. 91272506
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whether purchasers would confuse the goods and services, but rather whether there
is a likelihood of confusion as to the source of the goods and services. In re Samsung
Display Co., No. 90502617, 2024 WL 3451873, at *3 (TTAB 2024); In re Ox
Paperboard, LLC, No. 87847482, 2020 WL 4530517, at *6 (TTAB 2020).
In addition, where, as here, there is no evident relationship between the goods and
services, we must consider whether there is “something more” in the record to show
that the consuming public will perceive the goods and services as having the same
source of origin or a connection or affiliation. St. Helena Hosp., 774 F.3d at 754 (the
“something more” rule “has application whenever the relatedness of the goods and
services is not evident, well-known or generally recognized”); see also In re Coors
Brewing Co., 343 F.3d 1340, 1345 (Fed. Cir. 2003) (“[T]o 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.”) (emphasis omitted)
(quoting Jacobs v. Int’l Mutlifoods Corp., 668 F.2d 1234, 1236 (CCPA 1982)).
In considering the issue of relatedness, we find the Board’s decisions in Weider
Publ’ns, 2014 WL 343269 (TTAB 2014) and Conde Nast Publ’ns Inc. v. Vogue
Travel, 1979 WL 24922 (TTAB 1979)41 comparing magazines to beauty, health and
day spa services, and travel agency services, respectively, have some relevance even
though they are not directly on point because Applicant’s application identifies
“magazine publishing” as opposed to “magazines.” The Board explained in Weider
Publ’ns and Conde Nast that one circumstance in which magazines may be found
41 Proceeding number not available.

Opposition No. 91272506
-28-
related to goods and services is when the goods or services are of a type normally
featured in magazines. Weider Publ’ns, 2014 WL 343269, at *11; Conde Nast, 1979
WL 24922, at *4. In both cases, the Board found relatedness because the services at
issue, beauty, health and spa services and travel agency services, respectively, were
significantly featured in the opposers’ magazines. Weider Publ’ns, 2014 WL 343269,
at *14; Conde Nast, 1979 WL 24922, at *6.
Here, the record shows that COGNAC brandy is a product commonly featured in
magazine articles42 as well as other publications, such as books and newspapers.43
Moreover, since 2018, BNIC has published CULTURE COGNAC, a digital magazine
promoting certified Cognac products.44 Thus, although the facts here are one step
removed from the facts in Weider Publ’ns and Conde Nast, because COGNAC brandy
is commonly featured in magazines and other publications and because BNIC
publishes its own digital magazine devoted to COGNAC brandy, it is foreseeable that
consumers encountering Applicant’s COGNAC LIFE “magazine publishing” services
would assume that these services are sponsored by, connected to or otherwise
affiliated with Opposers, the same authority that authorizes the certified users of the
COGNAC certification mark for brandy.45
42 Duthilleul Decl., 10 TTABVUE 2-5; 9-34, 44-59, 76, 97-98 (WINE ENTHUSIAST MAGAZINE,
GQ MAGAZINE, FORBES (four articles), MARKET WATCH MAGAZINE (three articles), MEN’S
BOOK, and THE ATLANTIC).
43 See Section V.B.1 above.
44 Duthilleul Decl., 9 TTABVUE 17, ¶ 42, Exhibit F; 10 TTABVUE 145-53.
45 Applicant argues that “it would be unusual for an alcohol producer to offer magazine
publishing services, [thus] consumers will not assume that there is any association or link
between Applicant’s business and the Opposer[s].” 18 TTABVUE 7. This argument, however,

Opposition No. 91272506
-29-
In addition, Applicant’s magazine publishing services are broad enough to
encompass publishing magazines for others on all subject matters, including lifestyle
magazines such as those featuring content related to food and alcoholic beverages,
including Cognac brandy. See In re Hughes Furniture Indus., No. 85627379, 2015 WL
1734918, at *3 (TTAB 2015) (“Applicant’s broadly worded identification of ‘furniture’
necessarily encompasses Registrant’s narrowly identified ‘residential and commercial
furniture.’”); In re Accelerate, 2012 WL 684459, at *4 (“Certainly applicant’s broadly
worded ‘providing food and drink’ could encompass a coffee house which is defined as
a ‘restaurant where coffee and other refreshments are served.’ This is obviously the
most rational conclusion to draw given the inclusion of COFFEE HOUSE in
applicant’s mark.”). As discussed above, Applicant’s COGNAC LIFE mark evokes the
commercial impression of lifestyles associated with COGNAC brandy, namely,
luxury, affluence, sophistication and rap and hip hop culture, thus suggesting that
Applicant specializes in publishing magazines with this type of content. This further
supports a finding that reasonable consumers encountering Applicant’s COGNAC
LIFE mark would mistakenly believe that Opposers, who authorize use of their
is not persuasive. “Although confusion, mistake or deception about source or origin is the
usual issue posed under Section 2(d), any confusion made likely by a junior user’s mark is
cause for refusal; likelihood of confusion encompasses confusion of sponsorship, affiliation or
connection.” Hilson Research, Inc. v. Society for Human Resource Mgmt., No. 91084491, 1993
WL 290669, at *5 (TTAB 1993); see also In re Majestic Distilling Co., 315 F.3d 1311, 1316
(Fed. Cir. 2003) (“[T]he mistaken belief that [a good] is manufactured or sponsored by the
same entity ... is precisely the mistake that § 2(d) of the Lanham Act seeks to prevent”);
Federal Bureau of Investigation v. Societe: ‘M. Bril & Co., 1971 WL 16592, at *7 (TTAB 1971)
(proceeding number unavailable) (under Section 2(d) party must show “the purchasing public
would mistakenly assume that the applicant’s goods or services originate with, are sponsored
by, or are in some way associated with it”).

Opposition No. 91272506
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certification mark on brandy, also authorize, sponsor or are otherwise associated with
Applicant’s “magazine publishing” services. Cf. Giovanni Food, 2011 WL 810217, at
*3 (“We observe that the Board has found the ‘something more’ requirement to be met
where applicant’s mark made clear that its restaurant specialized in registrant’s type
of goods” (citing In re Golden Griddle Pancake House Ltd., (GOLDEN GRIDDLE
PANCAKE HOUSE for restaurant services confusingly similar to GOLDEN
GRIDDLE for table syrup) and In re Azteca Rests. Enters., Inc., (AZTECA MEXICAN
RESTAURANT for restaurant services confusingly similar to AZTECA for Mexican
food items)). Indeed, since the record shows that BNIC does in fact publish a digital
magazine promoting certified Cognac products, it is likely that consumers
encountering Applicant’s “magazine publishing” services will mistakenly assume
that Applicant is publishing the magazine for Opposers on their behalf.
We thus find a commercial relationship between COGNAC brandy and Applicant’s
COGNAC LIFE “magazine publishing” services for others. In addition, circumstances
support finding “something more” here, namely, the renown of Opposers’ COGNAC
certification mark and the substantial similarity between the parties’ marks in
meaning and commercial impression. In In re Opus One, Inc., No. 75722593, 2001 WL
1182924, at *2, 4, 6 (TTAB 2001) (finding “something more” established where
identical mark used for “restaurant services” and “wine” based on the “strong and
arbitrary character of registrant’s OPUS ONE mark and the resulting broad scope of
protection to which the mark is entitled, and in the nature of the specific commercial
relationship between wine and restaurant services”) (internal citations omitted); In

Opposition No. 91272506
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re Mucky Duck Mustard Co., No. 73603019, 1988 WL 252484, at *3 (TTAB 1988)
(although not expressly addressing “something more,” the Board found that “because
of the substantial similarity in the marks and the unique and memorable nature of
registrant’s mark [THE MUCKY DUCK], … customers of registrant’s restaurant who
encounter applicant’s ‘MUCKY DUCK’ and design mustard in the grocery store or
supermarket are likely to believe that the mustard originates with or is in some way
associated with registrant, that is, that the restaurant is selling its own ‘special’
mustard through retail outlets.”); cf. Giovanni Food, 2011 WL 810217, at *4
(“something more” requirement not met to demonstrate relatedness of mustard and
catering services where, among other things, “nothing [was] placed in the record upon
which to base a finding that the mark JUMPIN JACK’S is a “very strong, unique”
term as the mark MUCKY DUCK was held to be.”). Indeed, “the greater the degree
of similarity between the applicant’s mark and the [opposer’s] registered mark, the
lesser the degree of similarity between the applicant’s goods or services and the
[opposer’s] goods or services that is required to support a finding of likelihood of
confusion.” Opus One, 2011 WL 1182924, at *3.
Considering all of the circumstances in this case as a whole, we find that the
parties’ goods and services are commercially related and that “something more” has
been established such that the second DuPont factor favors finding a likelihood of
confusion.

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4. Trade Channels, Buyers to Whom Sales are Made and Consumer
Sophistication
We turn next to the similarity or dissimilarity of established, likely-to-continue
channels of trade and “[t]he conditions under which and buyers to whom sales are
made, i.e. ‘impulse’ vs. careful, sophisticated purchasing” under the third and fourth
DuPont factors, respectively. DuPont, 476 F.2d at 1361. The parties mistakenly argue
whether trade channels and consumers for COGNAC brandy are related to trade
channels and consumers of magazines, as opposed to “magazine publishing,” the
services identified in Applicant’s involved application. They similarly argue the
sophistication of purchasers of brandy and magazines.
Again, the involved application identifies “magazine publishing” services, as
opposed to magazines. The record is devoid of evidence based on the correct
identification of services for Applicant. We thus find the third and fourth DuPont
factors neutral.
5. Absence of Actual Confusion
Applicant argues that he “has not experienced a single instance of actual
confusion…. It is respectfully submitted that, since Applicant’s magazine has been
widely available since shortly after the application filing, any consumer confusion
would have certainly occurred by now.”46 In response, Opposer argues that “there is
no evidence for the Board to conclude that there has been an opportunity for confusion
to occur if confusion were likely.”47
46 Applicant’s Brief, 18 TTABVUE 11.
47 Rebuttal Brief, 19 TTABVUE 13.

Opposition No. 91272506
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Applicant’s arguments implicate the seventh DuPont factor, the nature and extent
of any actual confusion, as well as the related eighth DuPont factor, the extent of the
opportunity for actual confusion, as argued by Opposer. See DuPont, 476 F.2d at 1361.
These DuPont factors require us “to look at actual market conditions, to the extent
there is evidence of such conditions of record.” In re Guild Mortg. Co., No. 86709944,
2020 WL 1639916, at *8 (TTAB 2020).
As explained, we must consider whether there has been actual confusion between
the COGNAC mark used by authorized users on brandy and “magazine publishing”
– not magazines – because these are the services identified in the application.
Applicant admits that he uses his mark for a magazine and not “magazine
publishing” services for others, the services identified in the application,48 so there
has been no opportunity for actual confusion or the absence thereof. See, e.g., Made
in Nature, LLC v. Pharmavite LLC, No. 91223352, 2022 WL 2188890, at *30 (TTAB
2021) (“for the absence of actual confusion to be probative, there must have been a
reasonable opportunity for confusion to have occurred”). The seventh and eighth
DuPont factors are neutral.
6. Weighing the DuPont Factors
Our final task is to weigh the DuPont factors for which there has been evidence
and argument in this proceeding and “explain the results of that weighing.” Charger
Ventures, 64 F.4th at 1384.
48 Durand Decl., 8 TTABVUE 4, 69-70, 80, ¶ 13 and Exhibit L (Admission of Request for
Admission Nos. 16-17, 21).

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The high degree of fame of the COGNAC certification mark is a dominant
consideration in our analysis entitling the mark to a wider than normal scope of
protection; the fifth DuPont factor weighs heavily in favor of finding a likelihood of
confusion. Applicant’s COGNAC LIFE mark also is similar to Opposers’ COGNAC
certification mark in appearance and sound, and very similar in connotation and
commercial impression such that the first DuPont factor also heavily weighs in favor
of finding confusion likely. Based on the record, we further find a commercial
relationship between brandy and magazine publishing services and “something
more” to establish relatedness such that the second DuPont factor favors a likelihood
of confusion. This is especially true in light of the fact that under the fifth DuPont
factor, Opposers’ mark is entitled to an expansive scope of protection.
The parties’ trade channels, the buyers to whom sales are made and buyer
sophistication under the third and fourth DuPont factors are neutral as are the
seventh and eighth DuPont factors concerning the absence of actual confusion.
All of the relevant factors weigh in favor of a likelihood of confusion, two heavily
so. We therefore find that there is a likelihood of confusion between Opposers’
COGNAC certification mark used on brandy from the Cognac region of France and
Applicant’s mark COGNAC LIFE for “magazine publishing” services for others.
Decision: Opposers have proven by a preponderance of the evidence their
entitlement to a statutory cause of action and priority and likelihood of confusion
claim under Section 2(d) of the Trademark Act. The opposition is sustained under

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Trademark Act Section 2(d). We do not reach Opposers’ dilution claim under Section
43(c) of the Trademark Act.