TTAB Affirms Five Refusals of SHYFT Marks for Beer and Flavored Malt Beverages: Confusable with SHIFT for Wine

In these five consolidated appeals, the Board upheld the USPTO's Section 2(d) refusals to regsiter the mark SHYFT - in standard character form, in stylized form, and in the form shown immediately below - for beer and flavored malt-based beverages, excluding beer, finding confusion likely with the registered mark SHIFT for wine. There was little dispute over the relatedness of the goods, and the applicant did not address the channels of trade or classes of consumers. Applicant focused the bulk of its argument on the sixth DuPont factor, relying on third-party use and registration of marks containing the word SHIFT. In re Star Catcher LLC, Serial Nos. 97759143, 98032414, 98032430, 98032440, and 98032445 (July 1, 2025) [not precedential] (Opinion by Judge Thomas L. Casagrande).

The Marks: Applicant argued that SHIFT and SHYFT have different connotations because SHYFT, due to the fact that its misspelled with a “Y,” connotes “flavor-shifting qualities,” but the registered (correctly-spelled) SHIFT mark evokes the shifting of a car’s transmission. The Board didn't buy it. First, because there was no evidence to support that argument, and second, because "SHYFT is an easily-recognized misspelling of SHIFT."  The additional, disclaimed language “flavor shifting cocktail” is a descriptive phrase, displayed in a much smaller typeface, and "plays little role in the overall commercial impression of this version of Applicant’s mark."

The Board found Applicant’s SHYFT and Stylized SHYFT marks to be nearly identical to the standard character SHIFT mark in the cited registration. As to the other marks, "[w]ith only a small additional difference, Applicant’s marks fare little better and still are highly similar to the mark in the cited registration."

Sixth DuPont Factor As to applicant's third-party uses, there was no evidence of use of SHIFT marks for "flavored malt-based alcoholic beverages, excluding beers." With respect to beer (e.g., DOWNSHIFT, SPIRIT SHIFT, and SHIFT TRADE) and wine (THE SHIFT, REDSHIFT, SHIFTING LENS), "the differences from Applicant’s mark and the mark in the cited registration detract from the weight we assign the third-party evidence within the wine-and-beer space."

The Board found applicant's third-party registration evidence (SHIFT HAPPENS, NIGHT SHIFT) to be just as "underwhelming." "[N]one of these marks [is] as close to the mark in the cited registration as Applicant’s marks. Second, several of them are unitary marks where the meaning of 'shift' has a specific connotation."

In sum, while we do not find any degree of conceptual weakness in the registered mark, the slight level of commercial weakness shown by Applicant’s third-party use evidence will go on Applicant’s side of the ledger, to be weighed with the other factors in the final weighing.

Balancing the relevant DuPont factors, the Board concluded that confusions is likely, and so it affirmed the refusal to register.

If the first four factors did not so clearly support a conclusion that confusion is likely, a marginal showing of weakness like the one here hypothetically could tip the balance. But this is not such a case. The similarity of the marks here is just too great, and consumers perceive these goods as related. These are usually the most critical factors, and we see nothing indicating that they should not warrant their usual weight here. The classes of customers and trade channels overlap as well. In these circumstances and on this record, the slight weakness Applicant has shown in the term “shift” is nowhere near able to carry the day.

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TTABlogger comment: SHYFT for beer confusable with SHIFT for wine? In the real world, I doubt it.

Text Copyright John L. Welch 2025.