TTABlog Test: Is HORSETHIEF CANYON VINEYARDS for Wine Confusable with HORSE THIEF HOLLOW for Beer?

The USPTO refused to register (on the Supplemental Register) the mark HORSETHIEF CANYON VINEYARDS for "wine" [VINEYARDS disclaimed], concluding that confusion is likely with the registered mark HORSE THIEF HOLLOW for "beer." As we know, different alcoholic beverages are usually found to be related under Section 2(d) based on third-party registration and use evidence, but what about these marks? Did Applicant stand a chance? In re HC Vineyards LLC, Serial No. 98579854 (May 4, 2026) [not precedential] (Opinion by Judge Catherine Dugan O'Connor).

“There is no per se rule that holds that all alcoholic beverages are related.” Examining Attorney Lisa McCrary provided evidence of 16 entities offering both wine and beer under the same mark, 20 third-party registrations covering both goods, and an article in Wine Enthusiast titled “‘Give ‘Em What They Want’: These Craft Breweries Make Wine Now, Too.” [Why isn't this article hearsay? - ed.]

Applicant HC Vineyards, appearing pro se, argued that "these few examples are not representative of the industry standard. It is unusual for a winery to brew its own beer, just as it is even more rare for a brewery or restaurant/bar to produce and brand its own wine." The Board was unmoved, noting that applicant provided no evidence for its assertions, and further that the Office's evidence was sufficient to support a finding of relatedness under the second DuPont factor.

The same evidence established that the channels of trade "overlap to at least some degree." The third DuPont factor therefore supported the refusal.

Turning to the marks, the Board found that, "visually and phonetically, HORSETHIEF CANYON VINEYARDS and HORSE THIEF HOLLOW are similar due to the nearly identical first word(s) HORSETHIEF and HORSE THIEF." Moreover, the overall marks "engender similar impressions because they both convey the idea of a depressed area of land where thieves hide their stolen horses." The Board concluded that the first DuPont factor "somewhat heavily" supported the refusal.

HC Vineyards unsuccessfully argued that the involved consumers are sophisticated and exercise care in purchasing, but it provided no evidence thereof. The Board noted that neither identification of goods contains any limitations on quality or price of the goods, and they therefore must be presumed to include goods of all quality levels and price points. Beer is offered at moderate prices and wine may be more expensive but still includes moderately priced products that appeal to average consumers. The Board's decision must “be based on the least sophisticated potential purchasers.” "And even if some consumers of the goods are more sophisticated or discerning than others, even “careful or sophisticated consumers are not immune from source confusion.” The Board deemed the fourth DuPont factor to be neutral.

The Board also found the eighth, tenth, twelfth and thirteenth DuPont factors to be neutral, and no factor weighed in applicant's favor.

Read comments and post your comment here.

TTABlogger comment: Unless this was your first rodeo, you surely got this right. A typical mechanical application of the Board's stacked-deck Section 2(d) analysis.

Text Copyright John L. Welch 2026.