TTAB Overturns 2d Refusal of "SIDECAR SLIDER BAR" for Restaurant and Bar Services Due to Extensive Third-Party Use of "SIDECAR"

The Board reversed the USPTO's refusal to register the mark SIDECAR SLIDER BAR, in standard character and logo form restaurant services and bar services [SLIDER BAR disclaimed], finding confusion unlikely with three registered marks: SIDECAR for restaurant services; and SIDECAR SOCIAL, in standard character and logo form, for "bar services ancillary to entertainment services," the latter two registrations having the same owner. The Board found that, in light of the "highly suggestive nature of the common SIDECAR element, and the existence of extensive third-party marketplace use, the differences between the marks is sufficient that consumers would be able to distinguish Applicant’s marks from each of the cited marks." In re Restaurant Concept Management, LLC, Serial Nos. 98051196 and 98051234 (August 15, 2025) [not precedential] (Opinion by Judge Mary Beth Myles).

The Services: Since the services overlap (Applicant's "bar services" encompass "bar services ancillary to entertainment services"), the Board presumed that these services travel in the same trade channels to the same classes of consumers. Therefore, the second and third DuPont factors "weigh heavily" in favor of a finding of likely confusion.

Strength of the Cited Marks: Based on a dictionary definition, the Board found that "sidecar" has a "highly suggestive connotation when used in connection with bar and restaurant services, because it suggests a type of cocktail served by a restaurant or bar." Applicant submitted Internet excerpts showing the term SIDECAR in use by 33 entities in connection with restaurant, bar, or related services: including THE SIDECAR BAR & GRILL, SIDECAR PATIO OYSTER BAR, and SIDE CAR SPEAKEASY.

This third-party evidence is “powerful on its face,” and shows a strong degree of marketplace weakness for SIDECAR in connection with bar and restaurant services, and that SIDECAR is accordingly entitled to a narrower scope of protection under the sixth DuPont factor. Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363, 1374 (Fed. Cir. 2015); Juice Generation, 794 F.3d at 1336.

The Board concluded that the sixth DuPont factor weighed "heavily" against a finding of a likelihood of confusion. [Why does every factor weigh "heavily" one way or the other? - ed.]

The Marks: As to the cited SIDECAR mark, the Board found that, in light of the extensive evidence of third-party use of SIDECAR, the addition by Applicant of SLIDER BAR in both of its marks and the design element in its composite mark "is sufficient to render the marks distinguishable and dissimilar, even if used in connection with the identical services." As to the cited SIDECAR SOCIAL marks, the Board reached the same conclusion.

No Actual Confusion: Finally, applicant pointed to the lack of actual confusion evidence despite co-existence of applicant's marks with the cited marks for five and nine years, respectively. The Board, however, pointed out once again that "[i]n the context of an ex parte appeal, where there has been no opportunity for evidence of actual confusion to be presented by the registrants, the probative value of evidence purporting to show the absence of actual confusion is limited."

Conclusion: Deeming the first DuPont factor (coupled with the sixth factor) dispositive, the Board reversed the refusal.

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TTABlogger comment: Once in a while the "crowded field" argument works. 

Text Copyright John L. Welch 2025.