There is no per se rule that food or beverage products are related to restaurant services. Lloyd's Food Prods., Inc. v. Eli's, Inc., 987 F.2d 766, 25 USPQ2d 2027, 2030 (Fed. Cir. 1993) (no per se rule about confusion, where similar marks are used in connection with restaurant services and food products); see also In re Giovanni Food Co., Inc., 97 USPQ2d 1990, 1992 (TTAB 2011) (“relatedness of food services and food items is not to be assumed[,] and . . . evidence sufficient to meet the ‘something more' standard is necessary”).

In determining whether alcoholic beverages are related to restaurant services, “something more” than the use of similar or even identical marks is required. In re Coors Brewing Co., 343 F.3d 1340, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003) (reversing a Section 2(d) refusal to register the mark BLUE MOON & Design for beer in light of a registration for another BLUE MOON Design for restaurant services).

“Each case must be decided on its own facts and the differences are often subtle ones.” Jacobs v. Int'l Multifoods Corp., 668 F.2d 1234, 212 USPQ 641, 642 (CCPA 1982) (quoting Indus. Nucleonics Corp. v. Hinde, 475 F.2d 1197, 177 USPQ 386, 387 (CCPA 1973)).

The evidence of record from In re Coors had showed that there were a relatively small number of breweries in the United States selling beer and rendering restaurant services under the same mark, as compared to the number of United States restaurants as a whole at the time. The Federal Circuit characterized this relatively small number of brewpubs as de minimis.

Times have changed since In re Coors.

CHICKEN SCRATCH

More recently, in In re R.S. Lipman Brewing Company, LLC, Ser, No. 88209633 (TTAB May 3, 2023), an appeal of a Section 2(d) refusal of CHICKEN SCRATCH for “beer” in view of a CHICKEN SCRATCH registration for “restaurant services”; the evidence “shows a much closer relationship between beer and restaurant services as compared to the record described by the Federal Circuit 20 years ago in In re Coors.”

We find that the third-party registration, use and publications (articles and book) evidence provided by the Examining Attorney during prosecution shows “something more” than the fact that identical marks are used for beer and for restaurant services. Indeed the present record shows considerable growth of the “brewpub” market segment within the craft beer industry. This evidence reveals that today consumers are exposed to beer and restaurant services marketed and sold under the same mark, and thus would likely assume that such goods and services originate from the same source.

Noting the relatively recent growth of the “brewpub” market segment, the TTAB found that “consumers would expect that beer and restaurant services marketed and sold under the same mark would originate from the same source” and affirmed the Section 2(d) refusal.

RAO'S

This case stands in contrast to another recent TTAB decision that reversed a Section 2(d) refusal of RAO'S for “Wine produced from grapes grown in a single designated vineyard in the Atlas Peak American Viticultural Area, labeled and advertised in compliance with U.S. laws for the Atlas Peak American Viticultural Area appellation of origin; all of the foregoing sold at the vineyard, wine specialty stores, and direct to consumers; none of the foregoing sold in restaurants,” in view of RAO'S for “bar services; restaurant services.” In re 1729 Investments LLC, Ser. No. 90694523 (TTAB Apr. 24, 2023).

As previously discussed here, the TTAB found that the number of wineries having on-site restaurants was a small number in light of the large number (over 1 million) of restaurants in the United States.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.