CAFC Affirms TTAB: CHICKEN SCRATCH for Beer is Confusable with CHICKEN SCRATCH for Restaurant Services
In an opinion of a mere nine pages, the CAFC upheld the Board's decision [TTABlogged here] affirming a Section 2(d) refusal of the mark CHICKEN SCRATCH for "beer" in view of the identical mark registered for "restaurant services." The Board found that the cited mark is not weak and that the examining attorney's evidence established the relatedness of beer and restaurant services. The CAFC ruled that the Board's factual findings were supported by substantial evidence, and its conclusion that confusion is likely was not erroneous. In re R.S. Lipman Brewing Company, LLC, 2025 USPQ2d 614 (Fed. Cir. 2025) [not precedential].
Appellant Lipman argued that the cited mark is weak because it describes registrant's services, which provide "chicken dishes made from scratch." The Board, however, cited dictionary definitions of "chicken scratch" as meaning "bad handwriting." Those definitions constituted "substantial evidence in support of the Board’s finding that the cited mark is not conceptually weak."
Lipman next argued that substantial evidence did not support the Board’s finding that the proposed mark and the cited mark impart similar commercial impressions. Lipman contended that since registrant’s restaurant menu "overwhelmingly features” chicken dishes, the mark CHICKEN SCRATCH suggests chicken dishes made from scratch. In contrast, Lipman's specimens of use show "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 . . . ." The CAFC was not impressed, again ruling that substantial evidence supported that Board's finding.
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. *** Instead, Lipman provides only attorney argument and a photograph of the ’633 application’s specimen, which includes a chicken graphic not included in the proposed mark. *** 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 chicken dishes made from scratch to the mind of a consumer
In any event, both marks "convey some relation to 'chicken,' and thus have similar, or at least related, commercial impressions." The court concluded that substantial evidence underpinned the Board’s finding that the first DuPont factor "weighs strongly" in favor of a likelihood of confusion.
Turning to the involved goods and services, the CAFC rejected Lipman's argument that the Board failed to properly apply the 'something more' standard "because it affirmed the rejection of the proposed mark based on the same evidence that [the CAFC] found did not satisfy the 'something more' standard in Coors, a case that also involved beer and restaurants."
In Coors, the applicant had introduced evidence illustrating that only 1,450 out of 815,000 total restaurants in the United States were brewpubs or microbreweries (less than 0.18%). The examining attorney submitted a "very small number" of registrations identifying both beer and restaurant services. The CAFC there concluded that the evidence before the Board indicated that "the degree of overlap between the sources of restaurant services and the sources of beer [wa]s de minimus." [sic! The court actually said de minimis.]
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. *** Here, the Board had before it 21 active registrations identifying 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.
The CAFC concluded that substantial evidence supported the Board’s finding of "something more" than the fact that identical marks are used for beer and restaurant services, and it saw no legal error in the Board's application of that requirement.
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TTABlogger comment: Perhaps Lipman should have sought review by way of civil action, wherein it could add evidence to the record (i.e., comparative evidence like that in Coors.)
Text Copyright John L. Welch 2025.
posted by John L. Welch @ 4/22/2025
2 comments
2 Comments:
When the Board recites the mantra that there is a need for evidence of "'something more' than the fact that identical marks are used for beer and restaurant services, what is it referring to? Is it The fact that in the case at hand it is a fact that identical marks are used for beer and restaurant services OR that there is evidence of a number (even perhaps significant) of registrations that includes both beer and restaurant services OR even that there are a number of third party USES of the same matk for beer and restaurants services? If either of the latter two then would such evidence have to be thrown out as not relevant? I believe it's the latter two, but the Board often seems to not look at it that way as they give weight to such third party registrations and uses. The three "something more" factors should be all that matter (strong unique mark, some connection between the nature of the restaurant and beer (or whatever food or beverage product is involved) and the fact that the specific branded beverage is sold at the restaurant).
How can "beer" and "restaurant services" be related in one case and not another, or for one applicant and not another? That's how kangaroo courts operate.
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