Crow Hop Brewing Company, Ltd.

Trademark Trial and Appeal Board

Sep 1, 2016

No. 86359090 (T.T.A.B. Sep. 1, 2016)

This Opinion is not a
Precedent of the TTAB

Mailed: September 1, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Crow Hop Brewing Company, Ltd.
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Serial No. 86359090
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Adam C. Harris for Crow Hop Brewing Co., Ltd.

Barney L. Charlon, Trademark Examining Attorney, Law Office 104,
Dayna Browne, Managing Attorney.
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Before Cataldo, Kuczma and Heasley,
Administrative Trademark Judges.

Opinion by Heasley, Administrative Trademark Judge:
Applicant Crow Hop Brewing Co., Ltd. seeks registration on the Principal Register
of the standard character mark AFTERNOONER for “beer, ale, lager, stout, porter,
shandy” in International Class 32.1
The Trademark Examining Attorney has refused registration of Applicant’s mark
under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that the
applied-for mark so resembles the Sierra Nevada Brewing Company’s registered

1 Application Serial No. 86359090 was filed on August 6, 2014, based upon Applicant’s
allegation of a bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act. 15 U.S.C. § 1051(b).
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mark NOONER (in standard characters) for beer and ale in International Class 32,
as to be likely to cause confusion or mistake, or to deceive.2
When the refusal was made final, Applicant appealed and requested
reconsideration. After the Examining Attorney denied the request for
reconsideration, the appeal was resumed. We affirm the refusal to register.
I. Analysis

Our determination of likelihood of confusion under Section 2(d) of the Trademark
Act is based on an analysis of all of the probative facts in evidence that are relevant
to the factors set forth in In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177
USPQ 563, 567 (CCPA 1973) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis Ind.,
Inc., __U.S. __, 135 S.Ct. 1293, 113 USPQ2d 2045, 2049 (2015). See also In re Majestic
Distilling Co., Inc., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003).
In the course of applying these DuPont factors, we bear in mind the fundamental
purposes of Section 2(d), which are to prevent consumer confusion as to commercial
sources and relationships, and to protect registrants from damage caused by
registration of confusingly similar marks. Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc.,
469 U.S. 189, 198, 224 USPQ 327, 331 (1985); Qualitex Co. v. Jacobson Prods. Co.,
514 U.S. 159, 34 USPQ2d 1161, 1163 (1995); DuPont, 177 USPQ at 566. To this end,
we have considered each DuPont factor that is relevant and for which there is
evidence of record, and have treated any other factors as neutral. See M2 Software,
Inc. v. M2 Commc’ns, Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006);

2 Registration No. 4545209, issued on the Principal Register on June 3, 2014.
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ProMark Brands Inc. v. GFA Brands, Inc., 114 USPQ2d 1232, 1242 (TTAB 2015)
(“While we have considered each factor for which we have evidence, we focus our
analysis on those factors we find to be relevant.”).
A. The Goods, Channels of Trade, and Customers.
We begin with the similarity or dissimilarity of Applicant’s and Registrant’s
respective goods, channels of trade, customers and purchasing conditions. E.I.
DuPont, 177 USPQ 567. Applicant concedes that “the goods for which it is seeking to
register this mark are the same as the goods associated with Registrant’s Mark.
Namely, for the purposes of this discussion, beer.”3 The remaining goods identified in
its Application, namely ale, lager, stout porter, and shandy, are types of beer. See In
re Bay State Brewing Co., 117 USPQ2d 1958, 1959 (TTAB 2016).
Because the goods are identical, and there are no limitations as to channels of
trade or classes of purchasers in the application or cited registration, it is presumed
that Applicant’s goods and Registrant’s goods move in the same channels of trade
normal for those goods (such as liquor stores, ABC stores, beer sections of grocery and
convenience stores where applicable, as well as bars and restaurants) to the same
classes of purchasers for those goods. Id.; In re Viterra Inc., 671 F.3d 1358, 101
USPQ2d 1905, 1908 (Fed. Cir. 2012) (legally identical goods are presumed to travel
in same channels of trade to same class of purchasers); Monarch Wine Co., Inc. v.
Hood River Dist., Inc., 196 USPQ 855, 857 (TTAB 1977).

3 Applicant’s brief, p. 4, 8 TTABVUE 5.
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Applicant argues that craft beer drinkers, its target consumers, are more
discerning than average beer drinkers, and far more likely to exercise care in their
purchases, as craft beers are generally more nuanced and generally more expensive
than their domestic beer counterparts.4 But since there is no restriction in the subject
application and registration as to price or quality, there is no reason to infer that the
consumers of Applicant and Registrant’s beers will be particularly sophisticated,
discriminating, or careful in making their purchases. See Bay State Brewing, 117
USPQ2d at 1960 (quoting Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894,
1899 (Fed. Cir. 2000)); Somerset Distilling Inc. v. Speymalt Whisky Dist. Ltd., 14
USPQ2d 1539, 1542 (TTAB 1989); In re Bercut-Vandervoort & Co., 229 USPQ 763,
765 (TTAB 1986). “The authority is legion that the question of registrability of an
applicant’s mark must be decided on the basis of the identification of goods set forth
in the application regardless of what the record may reveal as to the particular nature
of an applicant’s goods, the particular channels of trade or the class of purchasers to
which sales of the goods are directed.” Octocom Sys., Inc. v. Houston Comp. Servs.
Inc., 918 F.2d 937, 16 USPQ2d 1783, 1787 (Fed. Cir. 1990). See also Stone Lion
Capital Partners, LP v. Lion Capital LLP, 746 F.3d 1317, 110 USPQ2d 1157, 1162-
63 (Fed. Cir. 2014). Even if we assume, arguendo, that consumers of Applicant’s
various beers and Registrant’s legally and virtually identical beers are discerning
consumers exercising a higher degree of care in their beverage selection, the plain

4 Applicant’s brief, pp. 10-11, 8 TTABVUE 11-12.
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language of the identified goods does not support a finding that such care outweighs
the other relevant DuPont factors.
For these reasons, the second and third DuPont factors weigh heavily in favor of
finding likelihood of confusion.
B. The Similarity or Dissimilarity of the Marks.
Under the first DuPont factor, we determine the similarity or dissimilarity of
Applicant’s and Registrant’s marks as compared in their entireties, taking into
account their appearance, sound, connotation and commercial impression. DuPont,
177 USPQ at 567; Stone Lion, 110 USPQ2d at 1160; Palm Bay Imps., Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692
(Fed. Cir. 2005). “[T]wo marks may be found to be confusingly similar if there are
sufficient similarities in terms of sound or visual appearance or connotation.” In re
Mr. Recipe, LLC, 118 USPQ2d 1084, 1089 (TTAB 2016)(emphasis in original; quoting
Kabushiki Kaisha Hattori Seiko v. Satellite Int’l, Ltd., 29 USPQ2d 1317, 1318 (TTAB
1991), aff’d mem., 979 F.2d 216 (Fed. Cir. 1992). Since the goods are identical, the
degree of similarity between the marks necessary to find likelihood of confusion need
not be as great as where there is a recognizable disparity between the goods. Bay
State Brewing, 117 USPQ2d at 1960; Coach Servs., Inc. v. Triumph Learning LLC,
668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012).
Registrant Sierra Nevada’s NOONER mark has been displayed on its beer as
follows:
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5
But since the registered mark is in standard characters, it may be depicted in any
font size, style or color that Applicant might adopt for its applied-for mark, which is
also in standard characters. Viterra, 101 USPQ2d at 1909-11; Citigroup Inc. v.
Capital City Bank Group Inc., 637 F.3d 1344, 98 USPQ2d 1253, 1259 (Fed. Cir.
2011); Bay State Brewing Co., 117 USPQ2d at 1961. Beyond that, “Many consumers
ordering these goods from a bartender or waiter/waitress will not have the
opportunity to see a label when they order the product. Further, if the beer is served

5 Response to Office Action of May 20, 2015, p. 87.

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in a glass because it is a draft beer from a keg, the consumer may never see a label.”
Bay State Brewing Co., 117 USPQ2d at 1961. So the marks’ sounds become even more
important in determining their similarity.
Applicant’s AFTERNOONER mark incorporates Registrant’s NOONER mark in
its entirety, adding a prefix. See, e.g., Wella Corp. v. California Concept Corp., 558
F.2d 1019, 194 USPQ 419 (CCPA 1977) (CALIFORNIA CONCEPT with surfer logo
men’s hair and cosmetic products confusingly similar to CONCEPT for cold
permanent wave lotion and neutralizer). Average consumers of Applicant and
Registrant’s beers would retain a general rather than specific impression of the
marks’ sounds, see Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d
1424, 1430 (TTAB 2013), and would naturally tend to shorten their pronunciation
of Applicant’s mark, asking a bartender or waiter for a ‘NOONER. See, e.g., In re
Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 219 (CCPA 1978) (J. Rich,
concurring); Marshall Field & Co. v. Mrs. Fields Cookies, 25 USPQ2d 1321, 1333
(TTAB 1992). Hence, the marks are similar in sound, as well as appearance.
The two marks’ connotations are temporally sequential, one immediately
following the other. “Nooner” has been defined as “an activity undertaken during the
lunch hour” or, in slang terms, “a brief midday sexual encounter.” 6 “Afternooner” as
“a person or thing that appears, flourishes, etc., in the afternoon” or “a baseball game
or other event that takes place in the afternoon.”7 Applicant focuses on the differences

6 Dictionary.com, Office Action of June 14, 2015, p. 6.
7 Dictionary.com, Office Action of June 14, 2015, p. 7.
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in slang meanings, arguing that NOONER conveys a sexual connotation, while
AFTERNOONER is associated with baseball, as in “an afternooner as part of a double-
header,”8 in accord with Applicant’s general theme of naming its beers with baseball
terms.9 The two terms, however, overlap one another definitionally. Both could convey
a slang sexual connotation. An excerpt from Peggy Morland’s book, A Little Texas Two-
Step, enclosed with the Examining Attorney’s denial of Applicant’s request for
reconsideration, has the sentence: “Hank had the grace to blush, knowing full well
that they made love every night and sometimes managed to squeeze in a nooner or an
afternooner before the bar opened.”10 Moreover, “Nooner” is not limited to sexual
activity, but may encompass “any activity engaged in at midday.”11 In much the same
way, “afternooner” is not limited to baseball games; the term may extend to any “other
event that takes place in the afternoon.”12 Applicant argues that the general
population uses the root words “noon” and “afternoon” without confusing the two.13

8 Response to Office Action of May 20, 2015, p. 14.
9 Affidavit of Dustin Kennard, c-owner of Applicant, ¶ 6., Response to Office Action of May 20,
2015, p. 14.
10 P. Moreland, A Little Texas Two-Step, Denial of Request for Reconsideration, 6
TTABVUE 7. Applicant contends that the materials attached to the Examining Attorney’s
Denial were incomplete, and should be afforded little, if any, weight, as they were written by
unknown sources. See Applicant’s brief, pp. 7-8, 8 TTABVUE 8-9. Applicant attached complete
versions of these articles to its brief on appeal, as it is permitted to do. Applicant’s brief, 8
TTABVUE 14-29, Trademark Trial and Appeal Board Manual of Procedure (TBMP) § 1207.01;
In re Bed & Breakfast Registry, 791 F.2d 157, 229 USPQ 818 (Fed. Cir. 1986). The Internet
evidence properly bore the full URL and the date the evidence was downloaded. TBMP §
1208.03. We have considered both the Examining Attorney’s and the Applicant’s submissions
in their entirety, according them their appropriate weight, and do not find them to be
materially inconsistent.
11 Dictionary.com, Office Action of June 14, 2015, p. 7.
12 Dictionary.com, Office Action of June 14, 2015, p. 7.
13 Applicant’s brief, p. 7, 8 TTABVUE 8.
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But that very temporal sequence, one following the other, creates the commercial
impression that they are related.
Applicant’s AFTERNOONER mark suggests a slightly later time of day than
NOONER for identical goods. It would tend to be seen as a variation of Registrant’s
mark, suggesting another line of beer emanating from the same source. See In re
Collegian Sportswear, Inc., 224 USPQ 174, 176 (TTAB 1984); Wella v. California
Concept, 194 USPQ at 422. In fact, Registrant Sierra Nevada applied to register
AFTER NOONER for beer, but its application was suspended pending the outcome of
the subject application.14 The marks are “sufficiently similar in terms of their
commercial impression’ such that persons who encounter the marks would be likely
to assume a connection between [Applicant and Registrant].” Coach Servs., 101
USPQ2d at 1721.
Applicant argues that since federal regulations require all beer labels to contain
the name and address of the entity that bottled and packaged that beer, consumers
would be able to distinguish its beers bearing the AFTERNOONER mark from those
bearing Registrant’s NOONER mark.15 As the Examining Attorney observes,
however, the Lanham Act does not contemplate such an exception for alcoholic
beverages. See, e.g., Majestic Distilling, 65 USPQ2d 1201 (RED BULL for tequila
likely to be confused with RED BULL for malt liquor). Consumers rely on trademarks
as a shorthand means to associate products with sources. Qualitex v. Jacobson, 34

14 Application Serial No. 86390739, Office Action of Jan. 7, 2016, pp. 10-11.
15 Applicant’s brief, pp. 11-12, 8 TTABVUE 12-13.
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USPQ2d at 1163 (citing 1 J. McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR
COMPETITION § 2.01[2], p. 2–3 (3d ed. 1994)). If confusingly similar marks are placed
on identical goods, that confusion will not be allayed by placing the manufacturers’
names elsewhere on the goods. Cf. Bay State Brewing Co., 117 USPQ2d at 1965
(“[T]he addition of house marks to these virtually identical marks used on identical
goods [beer] does not necessarily mean that purchasers are not likely to be confused.
In general, use of a house mark does not obviate confusion.”). Rather, it would falsely
imply to consumers that there is a connection or affiliation between the two
manufacturers, to the detriment of the senior trademark owner. “The trademark law
not only protects the consumer from likelihood of confusion as to commercial sources
and relationships, but also protects the registrant and senior user from adverse
commercial impact due to use of a similar mark by a newcomer.” In re Shell Oil Co.,
992 F.2d 1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993).
For these reasons, the similarity of the marks also weighs in favor of finding a
likelihood of confusion.
C. The Number and Nature of Similar Marks in Use on Similar Goods.
Under the sixth DuPont factor, the Federal Circuit has stated that “evidence of
third-party use of similar marks on similar goods ‘can show that customers have been
educated to distinguish between different marks on the basis of minute distinctions.”’
Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium
Sports, S.L.U., 797 F.3d 1363, 116 USPQ2d 1129, 1136 (Fed. Cir. 2015) (quoting Juice
Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir.
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2015)). “The weaker an opposer’s mark, the closer an applicant's mark can come
without causing a likelihood of confusion and thereby invading what amounts to its
comparatively narrower range of protection.” Juice Generation, 115 USPQ2d at 1674.
Applicant contends that Registrant’s mark is weak and should be afforded a
narrow scope of protection based on several third-party uses of NOONER for beer:16
The first, Cycle Brewery’s “Nooner” beers, Batches # 1, 4, and 10, brewed in Florida,
received comments on RateBeer.com from beer enthusiasts in various parts of the
United States and Canada, although it did not indicate the volume of sales.17 The
second is No Limit Brewing’s “5-Hour Nooner” a coffee-infused specialty dark brew,
made for the fall.18 Judging from the record evidence, this brewer is a small start-up,
publicized via its Facebook page, where it states “We are focusing on our brewery
plans, business plan and recipe formulation for larger volumes. I’m excited that our
great beers will [be] pouring soon!”19 The third, East End Brewing Company of
Pittsburgh’s “Nooner Scottish Ale,” was evidently a “one-off,” brewed in or about 2010,
and no longer in production.20 To this Applicant adds three “Nooner” wines,21 one
made in Paso Robles, California, another made in Carlyle, Illinois, and a third made

16 Applicant’s brief, pp. 4-6, 8 TTABVUE 5-7.
17 Applicant’s Request for Reconsideration of Dec. 14, 2015, pp. 425-26, 437-39, 510.
18 Applicant’s Request for Reconsideration of Dec. 14, 2015, pp. 428, 432-33, 435-36.
19 Id. at 431.
20 Id. at 504, 511-13.
21 Wine is related to beer. See Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d
1816, 1826-27 (TTAB 2015).
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in Commerce, Missouri.22
A similar factual scenario arose in Palm Bay Imports, where Palm Bay’s intent-to-
use application for the mark VEUVE ROYALE for sparkling wine was refused
registration based on opposer Veuve Clicquot’s registered VEUVE-formative marks
for sparkling wine. Palm Bay introduced evidence of at least five different third-party
alcoholic beverages that used the term VEUVE or a foreign equivalent. 73 USPQ2d
at 1693. The Federal Circuit, affirming the Board’s refusal, held that “The probative
value of third-party trademarks depends entirely upon their usage. … As this court
has previously recognized where the record includes no evidence about the extent of
third-party uses the probative value of this evidence is thus minimal.” Id. (quoting
Han Beauty, Inc. v. Alberto-Culver Co., 236 F.3d 1333, 57 USPQ2d 1557, 1561 (Fed.
Cir. 2001)(emphasis in original, punctuation omitted).
So too here. Although Applicant’s first example, Cycle Brewing, evinces some
recognition among aficionados who took the trouble to rate its beers, there is no
evidence of the extent of these third-party marks’ actual use in commerce, so there is
no evidence that the consuming public, including both sophisticated and casual beer
drinkers, has become so familiar with a multiplicity of the same or similar marks that
it can distinguish them based on minor differences. See In re Mighty Leaf Tea, 601
F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010); In re C. H. Hanson Co., 116
USPQ2d 1351, 1353 (TTAB 2015) (citing Smith Bros. Mfg. Co. v. Stone Mfg. Co., 476
F.2d 1004, 177 USPQ 462, 463 (CCPA 1973); Carl Karcher Enters. Inc. v. Stars Rests.

22 Id. at 440-47.
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Corp., 35 USPQ2d 1125, 1130-31 (TTAB 1995)).
Applicant points to a number of beers and brewery names containing the word
“noon,”23 but the mere existence of these names does not imply that the term
NOONER carries a highly suggestive connotation in the relevant beer industry and
therefore may be considered weak. See Juice Generation, 115 USPQ2d at 1675; Jack
Wolfskin, 116 USPQ2d at 1136.
Applicant’s third-party evidence thus fails to undermine the strength of
Registrant’s NOONER mark, either conceptually or commercially, as an indicator
or a single source. Accordingly, the sixth DuPont factor is neutral.
II. Conclusion
Having carefully considered all of the arguments and evidence of record, and all
relevant DuPont factors, we find that: Applicant’s and Registrant’s goods, channels of
trade, and classes of customers are the same; their marks are similar in appearance,
sound, connotation and commercial impression; and the number of similar marks in
use on similar goods does not undermine the strength of Registrant’s mark. These
DuPont factors outweigh any sophisticated purchasing decisions. All other factors are
deemed neutral.
Decision: The refusal to register Applicant’s mark AFTERNOONER is affirmed.

23 Id. at 402-405.