Great Adirondack Steak & Seafood Café, Inc.v.Adirondack Pub & Brewery, Inc.

Trademark Trial and Appeal BoardJan 9, 2019

No. 91219162 (T.T.A.B. Jan. 9, 2019)

This Opinion is Not a Precedent of the TTAB Mailed: January 9, 2019 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ Great Adirondack Steak & Seafood Café, Inc. v. Adirondack Pub & Brewery, Inc. _____ Opposition No. 91219162 _____ Nicholas Mesiti, David P. Miranda and Rachel L. Pearlman of Heslin Rothenberg Farley & Mesiti, P.C., for Great Adirondack Steak & Seafood Café, Inc. Charles H. Knull of KNULL, P.C., for Adirondack Pub & Brewery, Inc. _____ Before Zervas, Ritchie and Adlin, Administrative Trademark Judges. Opinion by Zervas, Administrative Trademark Judge: Adirondack Pub & Brewery, Inc. (“Applicant”) seeks to register the standard character mark ADIRONDACK BREWERY for “beer” in International Class 32 on the Principal Register pursuant to a claim of acquired distinctiveness under Section 2(f) of the Trademark Act, 35 U.S.C. §1052(f).1 The word BREWERY is disclaimed. 1 Application No. 86027053, filed on August 2, 2013 under Section 1(a) of the Trademark Act, 15 U.S.C. § 1051(a), claiming first use on April 28, 1999 and first use in commerce on September 11, 1999. Opposition No. 91219162 - 2 - Great Adirondack Steak & Seafood Café, Inc. (“Opposer”) opposed registration of Applicant’s mark claiming likelihood of confusion under Section 2(d) of the Trademark Act, 15 U.S.C. §1052(d), with Opposer’s pleaded Registration No. 4425098 (“the ‘098 registration”)2 for the standard character mark GREAT ADIRONDACK BREWING COMPANY for “ales; beers” in International Class 32, which registered pursuant to Section 2(f) and contains a disclaimer of BREWING COMPANY.3 Applicant, in its Answer,4 denied the salient allegations of the Notice of Opposition and raised several affirmative defenses, including estoppel, waiver, laches, acquiescence and unclean hands. Except for unclean hands, Applicant did not discuss these affirmative defenses in its trial brief and therefore waived them. See Swiss Watch Int’l Inc. v. Fed’n of the Swiss Watch Indus., 101 USPQ2d 1731, 1734 n.4 (TTAB 2012) (affirmative defenses deemed waived where no mention of them in trial brief); Barbara’s Bakery Inc. v. Landesman, 82 USPQ2d 1283, 1292 (TTAB 2007) (where applicant did not argue the affirmative defense of equitable estoppel in her brief, the affirmative defense was given no consideration). We discuss unclean hands 2 Registered October 29, 2013, claiming first use and first use in commerce on December 30, 1997. Applicant sought to cancel this registration in Cancellation No. 92058318, and the Board, in its March 30, 2015 order, stated that Cancellation No. 92058318 will be treated as a counterclaim in the present Opposition. 11 TTABVUE. On June 8, 2017, the Board granted summary judgment to Opposer and dismissed Cancellation No. 92058318 with prejudice. 36 TTABVUE. 3 Opposer also pleaded mere descriptiveness under Section 2(e)(1) of the Trademark Act, 35 U.S.C. §1052(e)(1) but did not discuss that claim in its brief. Opposer has thus waived its Section 2(e)(1) claim. Alcatraz Media Inc. v. Chesapeake Marine Tours Inc., 107 USPQ2d 1750, 1753 (TTAB 2013) (petitioner found to have waived claims not argued before the Board). 4 4 TTABVUE. Opposition No. 91219162 - 3 - in the context it was raised, i.e., in connection with Applicant’s argument in response to Opposer’s contention that Applicant acted in bad faith. I. The Trial Record In addition to the pleadings, the trial record automatically includes the involved application file pursuant to Trademark Rule 2.122(b), 37 C.F.R. § 2.122(b). The trial record also includes the following: A. Submitted by Opposer. 1. The declaration of James Pouliot, Route Salesman at Craft Beer Guild Distributing of New York, a beer distributor.5 2. Opposer’s notice of reliance, submitting:6 a) a printout of Opposer’s ‘098 registration certificate and a printout from the TSDR database of the ‘098 registration record with current status and showing Opposer’s ownership thereof; b) discovery documents which are the subject of a Stipulation for the Introduction of Evidence at Trial (“Stipulation”) filed on July 6, 20177 and approved by the Board on July 19, 2017;8 c) the discovery deposition of John Carr, Applicant’s founder and President (and exhibits); and d) Applicant’s answers to Opposer’s interrogatories and requests for admission. 5 40 TTABVUE. 6 41 TTABVUE. 7 The Stipulation provides that “each document produced in discovery is authentic under the Federal Rules of Evidence for purposes of admission into evidence during the testimony period” and “objections to the admissibility of such documents are hereby waived. Under this stipulation, the parties may make these documents of record by Notice of Reliance alone.” 37 TTABVUE 1. 8 38 TTABVUE. Opposition No. 91219162 - 4 - 3. The declaration of Robert Charles Kane, Opposer’s manager, and exhibits.9 B. Submitted by Applicant. 1. The declaration of Mr. Carr.10 2. The declaration of Phil Cassella, Applicant’s marketing director.11 3. The declaration of Larry Nichols, regional manager for key accounts at DesCrescente Distributing Company.12 4. Applicant’s seven notices of reliance, submitting discovery documents which are the subject of the Stipulation. 13 II. Evidentiary Issues Opposer objects to 33 of Applicant’s exhibits, raising numerous objections to each exhibit.14 None of the testimony and/or exhibits sought to be excluded is outcome determinative. Given this and the number of objections, we see no compelling reason to discuss the objections one by one in any detail. Suffice it to say, we have considered all of the exhibits submitted by Applicant. In doing so, we have kept in mind the various objections raised by Opposer, and we give whatever probative value the subject exhibits merit. Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1479 (TTAB 2017). 9 43 TTABVUE. 10 45 TTABVUE. 11 46 TTABVUE. 12 47 TTABVUE. 13 48-54 TTABVUE. 14 65 TTABVUE. These objections include those objections which the Board deferred consideration of in its May 22, 2018 order, Opposition No. 91219162 - 5 - Applicant objects to Opposer’s Exhibits 3-9 (printouts of Untappd.com reviews submitted to show actual confusion) on the ground that they contain hearsay statements made by anonymous, unidentified third parties.15 “Internet evidence, similar to printed publications, is only admissible for what it shows on its face, and because it does not fall within the exception to the hearsay rule, will not be considered to prove the truth of any matter stated therein.” Ayoub, Inc. v. ACS Ayoub Carpet Serv., 118 USPQ2d 1392, 1399 n.62 (TTAB 2016) (citing Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1467 n.30 (TTAB 2014) (Internet webpage evidence admissible only to show what has been printed and not for the truth of what has been printed); Hornby v. TJX Companies Inc., 87 USPQ2d 1411, 1416 (TTAB 2008) (“statements made on website might otherwise be considered hearsay”)). We note, however, that Mr. Carr discusses these exhibits in his testimony.16 Because the type of web evidence presented is competent to show, on its face, matters of relevance to the issue of actual confusion, see Harry Winston, Inc. v. Bruce Winston Gem Corp., 111 USPQ2d 1419, 1428 (TTAB 2014), we overrule Applicant’s objection to Exhibits 3-9. III. Standing Standing is a threshold issue that must be proven by a plaintiff in every inter partes case. To establish standing in an opposition or cancellation proceeding, a plaintiff must show “both a ‘real interest’ in the proceedings as well as a ‘reasonable 15 68 TTABVUE 10-11. 16 Carr Decl. ¶ 31, 45 TTABVUE 10. Opposition No. 91219162 - 6 - basis’ for its belief of damage.” Empresa Cubana Del Tabaco v. Gen. Cigar Co., 753 F.3d 1270, 111 USPQ2d 1058, 1062 (Fed. Cir. 2014) (quoting ShutEmDown Sports, Inc., v. Lacy, 102 USPQ2d 1036, 1041 (TTAB 2012)); Ritchie v. Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999); Lipton Indus., Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982). Opposer’s standing is established by its pleaded registration, which Opposer has entered into the record. See, e.g., Cunningham v. Laser Golf Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000) (party’s ownership of pleaded registration establishes standing). Applicant does not dispute that Opposer has standing. IV. Priority Because Opposer’s pleaded registration is of record and there is no pending counterclaim to cancel the registration, priority is not at issue with respect to the mark and goods covered by the registration. See Cunningham v. Laser Golf Corp., 55 USPQ2d at 1844; King Candy Co. v. Eunice King’s Kitchen, Inc., 496 F.2d 1400, 182 USPQ 108, 110 (CCPA 1974); Penguin Books Ltd. v. Eberhard, 48 USPQ2d 1280, 1286 (TTAB 1998). V. Likelihood of confusion We now consider Opposer’s claim of likelihood of confusion under Section 2(d) of the Trademark Act. Our determination of Opposer’s claim of likelihood of confusion is based on an analysis of all of the facts in evidence that are relevant to the factors bearing on the issue of likelihood of confusion. In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973) (“du Pont”); see also In re Majestic Opposition No. 91219162 - 7 - Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In considering the evidence of record on these factors, we keep in mind that “[t]he fundamental inquiry mandated by §2(d) goes to the cumulative effect of differences in the essential characteristics of the goods and differences in the marks.” Federated Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976). “[W]e need to consider only the factors that are relevant and of record.” M2 Software Inc. v. M2 Commc’ns Inc., 450 F.3d 1378, 78 USPQ2d 1944, 1947 (Fed. Cir. 2006). A. Similarity of Goods, Channels of Trade, Classes of Purchasers Both parties have “beer” in their respective identifications of goods. Opposer also identifies “ale,” which is defined in The American Heritage Dictionary of the English Language (5th ed. 2018)17 as a “usually full-bodied beer that has been fermented at a relatively warm temperature.” Thus an ale is also a type of beer, and the goods are identical. Because the goods are identical, we presume that the channels of trade and classes of purchasers for those goods are also the same. See In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012) (even though there was no evidence regarding channels of trade and classes of consumers, the Board was entitled to rely on this legal presumption in determining likelihood of confusion); In re Smith and Mehaffey, 31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are legally 17 Accessed at https://www.ahdictionary.com/word/search.html?q=ale. We may and do take judicial notice of this definition. Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imp. Co., 213 USPQ 594, 596 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983); In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). Opposition No. 91219162 - 8 - identical, they must be presumed to travel in the same channels of trade, and be sold to the same class of purchasers.”). Our presumption is supported by the evidence; Mr. Carr admits that Applicant’s beers are sold in bars, restaurants and beverage centers,18 and Mr. Kane testified that Opposer’s beers and ales are sold in all major trade channels for beer, including bars, restaurants and beverage stores.19 The ultimate purchaser of Opposer’s and Applicant’s goods is an adult member of the general purchasing public who consumes alcoholic beverages. B. Purchasing Conditions. “When the products are relatively low-priced and subject to impulse buying, the risk of likelihood of confusion is increased because purchasers of such products are held to a lesser standard of purchasing care.” Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54 USPQ2d 1894, 1899 (Fed. Cir. 2000). The Board’s finding regarding purchaser care in In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 n. 4 (TTAB 2016) is equally applicable here: “[b]ecause the respective identifications include ‘beer’ without any limit regarding a particular price point, we must treat the goods as including inexpensive as well as more costly beers, and therefore presume that purchasers for ‘beer’ include ordinary consumers who may buy inexpensive beer on impulse.” Thus, Opposer’s and Applicant’s goods are not only identical; they are sold through identical trade channels to identical classes of consumers, who are likely to exercise a relatively low degree of care when making purchasing decisions, all of 18 Carr Decl. ¶9, 45 TTABVUE 4. 19 Kane Decl. ¶5, 43 TTABVUE 3. Opposition No. 91219162 - 9 - which increases the likelihood of confusion. See, e.g., In re Majestic Distilling Co., 65 USPQ2d at 1205 (affirming Board finding that malt liquor and tequila are both relatively inexpensive products likely to be purchased on impulse). C. Number and Nature of Third-Party Uses/Strength of Opposer’s Mark Applicant submitted evidence of third-party use and registration of ADIRONDACK-formative marks for beverages. Third-party registrations may be relevant to show the sense in which a mark is used in ordinary parlance; that is, an element common to both parties’ marks may have a normally understood and well- recognized descriptive or suggestive meaning, leading to the conclusion that it is inherently weak as a source indicator. 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); see also In re Dayco Products-Eaglemotive, Inc., 9 USPQ2d 1910, 1912 (TTAB 1988) (third-party registrations may be “useful to demonstrate the sense in which a term is used in ordinary parlance and they can show that a particular term has been adopted by those engaged in a certain field or industry and that said term has less than arbitrary significance with respect to certain goods or services.”). “[E]vidence of third-party use bears on the strength or weakness of an opposer’s mark.” Juice Generation, Inc. v. GS Enters. LLC, 794 F.3d 1334, 115 USPQ2d 1671, 1674 (Fed. Cir. 2015) (citing Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005)). Third-party uses may show that customers have become so conditioned by a plethora of such similar marks that customers have been educated to distinguish Opposition No. 91219162 - 10 - between different marks on the bases of minute distinctions. Omaha Steaks Int’l, Inc. v. Greater Omaha Packing Co., 908 F.3d 1315, 128 USPQ2d 1686, 1693 (Fed. Cir. 2018); Juice Generation, Inc. v. GS Enters. LLC, 115 USPQ2d at 1674; Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1691. The “relevant du Pont inquiry is ‘[t]he number and nature of similar marks in use on similar goods.’” Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 23 USPQ2d 1698, 1701 (Fed. Cir. 1992) (quoting Weiss Assocs., Inc. v. HRL Assocs., Inc., 902 F.2d 1546, 14 USPQ2d 1840, 1842 (Fed. Cir. 1990)). Some of the evidence Applicant relies on has little, if any, probative value: ● Third-party registrations (such as ADIRONDACK, Reg. No. 1648289 for seltzer water, tonic water and natural water)20 and uses (such as “Adirondack Coast Wine Trail Map,”21 “Adirondack Craft Beverage Trail and Map”22 and “Adirondack Motel”), for ADIRONDACK-formative marks, as well approximately 450-500 yellowpages.com23 entries for businesses with “Adirondack” in their names in Albany, Lake Placid, Lake George, Saranac Lake and Plattsburgh, all in New York. This evidence is all for goods or services unrelated to alcoholic beverages, or their manufacture or sale. ● Search results from “Beeradvocate,”24 “RateBeer”25 and “Saranac Lake Guide”26 – they do not reflect that the uses located are active. Further, the “Beeradvocate” and “RateBeer” webpages do not explain the criteria for inclusion, whether the beers are in the planning or production phases or on the market, or describe the extent of their promotion, geographic reach, volume of sales, or duration of use. A mere 20 48 TTABVUE 136-140, 191. 21 50 TTABVUE 17-19. 22 50 TTABVUE 20-49. 23 52 TTABVUE 458-539. 24 50 TTABVUE 131-133. 25 50 TTABVUE 142 – 158. 26 50 TTABVUE 55. Opposition No. 91219162 - 11 - listing of results, without more, lacks sufficient context, and is of little or no probative value. Cf. In re Thomas Nelson Inc., 97 USPQ2d 1712, 1715 (TTAB 2011) (“A search summary of Internet search results has little probative value, because such a list does not show the context in which the term is used on the listed web pages.”) (citation omitted.) ● Pending applications – they are evidence only that an application was filed on a certain date and are not evidence of use of the marks. Nike Inc. v. WNBA Enters. LLC, 85 USPQ2d 1187, 1193 n.8 (TTAB 2007); Interpayment Servs. Ltd. v. Docters & Thiede, 66 USPQ2d 1463, 1468 n.6 (TTAB 2003). ● Cancelled registrations – they are not evidence of anything except that they issued. See Action Temporary Servs. Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ2d 1307, 1309 (Fed. Cir. 1989) (“a cancelled registration does not provide constructive notice of anything”); Time Warner Ent. Co. v. Jones, 65 USPQ2d 1650, 1654 n.6 (TTAB 2002).27 ● Third-party uses and registrations located in third-party registration file wrappers – they were submitted to the Office well before trial in this unrelated case (in one case in 1997) and do not reflect current use or registration.28 The following third-party registrations and uses for ADIRONDACK-formative marks remain: ● Reg. No. 2194904 for ADIRONDACK TRAIL MIX, registered pursuant to Section 2(f), for beers and ale.29 ● Internet uses for beer and breweries:30 ADIRONDACK GOLD, ADIRONDACK LAGER and ADIRONDACK TOBOGGAN CO. 27 Reg. No. 2090292 for ADIRONDACK CLEAR ‘N’ NATURAL (registered pursuant to Section 2(f), CLEAR ‘N’ NATURAL disclaimed), 48 TTABVUE 285, and Reg. No. 3751432 for ADIRONDACK NATURALS (registered pursuant to Section 2(f), NATURALS disclaimed), 48 TTABVUE 288, both for soft drinks, were cancelled after trial. 28 48 TTABVUE 43-132. 29 48 TTABVUE 133. Applicant states that there are six third party registrations; it did not identify them or state where they appear in the record. 30 48 TTABVUE 454-455; 49 TTABVUE 52-53; 50 TTABVUE 89, 108-109. Opposition No. 91219162 - 12 - ● Internet uses for wineries and wine:31 ADIRONDACK WINERY, ADIRONDACK SANGRIA, ADIRONDACK SPLENDOR, ADIRONDACK OVERLOOK, ADIRONDACK BREEZE and ADIRONDACK RED - all but one of these are from the same winery, Adirondack Winery. ● Internet uses for distilleries and distilled spirits products:32 ADIRONDACK DISTILLING COMPANY, ADIRONDACK 601 AMERICAN WHISKEY, ADIRONDACK 601 BOURBON WHISKEY, ADIRONDACK GIN, ADIRONDACK VODKA and ADIRONDACK WHITE WHISKEY – all from the same single source. ADIRONDACK HIGH RYE BOURBON and ADIRONDACK RYE WHISKEY – both from the same source. ● Internet uses for liquor stores: ADIRONDACK WINE AND LIQUOR and ADIRONDACK MOUNTAIN SPIRITS.33 ● Internet uses for bars and restaurants:34 CAFÉ ADIRONDACK, ADIRONDACK BAR AND GRILL and THE ADIRONDACK. 31 50 TTABVUE 60, 63-68, 70 – 76, 84. 32 50 TTABVUE 50, 51, 114, 115. 33 52 TTABVUE 500, 514. Both are from yellowpages.com; listings from online yellow pages have probative value because they “carry a presumption that the name ... is being used by third parties in connection with their ... services.” Anthony’s Pizza & Pasta Int’l Inc. v. Anthony’s Pizza Holding Co., 95 USPQ2d 1271 (TTAB 2009), aff’d, 415 Fed. Appx. 222 (Fed. Cir. 2010) (citing Lloyd’s Food Products Inc. v. Eli’s Inc., 987 F.2d 766, 25 USPQ2d 2027, 2029 (Fed. Cir. 1993) (“Lloyd’s Foods’ threshold showing that the mark appears in advertising, in the form of current listings in the yellow and white pages, carries the presumption that the service mark is being used by third-parties in connection with the offering of the advertised services. It therefore was impermissible to disregard the directory listings.”). 34 50 TTABVUE 77, 119-120. Opposition No. 91219162 - 13 - Mr. Carr and Mr. Cassella both testified that they are aware of the following additional six uses of “Adirondack” for alcoholic beverages by third parties:35 Davidson Brothers, Dacker Authentic Adirondack Ale; Adirondack Wine Merchants; Otter Creek Winery, Adirondack Red; Ledge Rock Hill Winery, Adirondack Moon; Lake George Distilling Company, Adirondack Wildfire Whiskey; and Hudson Valley Distillers, Adirondack Applejack. We count one registration and four uses of ADIRONDACK for beer, and no registrations and approximately 25 internet uses for other alcoholic beverages and establishments that sell alcohol and beverages. We must consider the strength of Opposer’s mark based on the nature of the mark and its commercial strength. Bell’s Brewery, Inc. v. Innovation Brewing, 125 USPQ2d 1340, 1345 (TTAB 2017); see also In re Chippendales USA Inc., 622 F.3d 1346, 96 USPQ2d 1681, 1686 (Fed. Cir. 2010) (“A mark’s strength is measured both by its conceptual strength (distinctiveness) and its marketplace strength (secondary meaning)).” Opposer maintains that its mark is well known because:36 - It used its mark for more than 20 years; - It received dozens of awards from beer festivals and competitions in the United States; - It received unsolicited local, regional and national media coverage of its beer sold under its mark; - It attends local, regional and national beer festivals where it advertises and promotes its beer and ale, and 35 Carr Decl. ¶ 29, 45 TTABVUE 9; Cassella Decl. ¶ 5, 46 TTABVUE 3. 36 Opposer’s brief at 20, 63 TTABVUE 27. Opposition No. 91219162 - 14 - at beer tasting events held at its retail accounts, third party fundraisers and other food and beverage events; - It advertises on its websites, Facebook and other social media pages; and - It has significant gross retail sales.37 We find that Opposer has not established that its mark is commercially strong. Although Opposer has been using its mark since December 30, 1997,38 its sales figures are not impressive and its advertising appears to be limited, placed in local publications such as Lake Placid News – Dining Guide, the Crowne Plaza Guide, the Ale Street News, Yankee Brew News, Glens Falls Post Star, Upstate Brew York and Adirondack Journal.39 We know nothing about the circulation of, or the frequency Opposer advertised in, such publications. Regular distribution of Opposer’s goods appears to be limited to New York State.40 Mr. Kane testified that Opposer attends local, regional and national beer festivals, where it advertises and promotes its beer and ale under its mark, including the TAP New York Craft Beer and Fine Food Festival in Hunter, New York since at least 2001, the Great American Beer Festival in Denver, Colorado since at least 2006, the Lake Placid Brewfest in Lake Placid, New York since 2011 and the World Beer Cup Festival in Boulder, Colorado since at least 2006.41 Opposer won prizes in all but one of such festivals, and won a silver 37 Sales figures are confidential and hence not identified. 38 Kane Decl. ¶ 2, 44 TTABVUE 3. 39 44 TTABVUE 4. 40 Kane Decl. ¶¶ 7-8, 44 TTABVUE 4; 42 TTABVUE 61-65. 41 Kane Decl. ¶ 12, 44 TTABVUE 5. Opposition No. 91219162 - 15 - medal in the 2007 North American Beer Awards.42 The record reflects, however, at least insofar as the Great American Beer Festival, many categories of beer and many winners.43 There is no pertinent information about the other festivals and competitions. As for any unsolicited media attention concerning Opposer, Mr. Kane mentions two articles.44 The first from USA Today (dated January 20, 2014, entitled “Top 10 Ski Resort Breweries”), devotes just three sentences to Opposer, one stating, “[f]ounded in 1997, the small-scale operation produces some of the state’s best beer from the [illegible] Whiteface Black Diamond Stout to the Farmhouse Pale.”45 The second article is in the October-November 2015 issue of the Ale Street News, discusses several breweries, and devotes six sentences to Opposer.46 With regard to the “thousands of followers on its websites (www.adksteakandseafood.com and www.adirondackbrewing.com), Facebook and other social media pages,” we have no basis to evaluate the relative significance of the number of followers compared to other breweries.47 42 Kane Decl. ¶ 18-21, 44 TTABVUE 6-8. 43 Mr. Kane states that approximately 49,000 people attend this festival each year, citing to Trial Exh. 21, 41 TTABVUE 80-85, a statistic on www.greatamericanbeerfestival.com. 43 TTABVUE 6. This number is hearsay and is not considered for its truth. Fed. R. Evid. 802; Ayoub, Inc. v. ACS Ayoub Carpet Serv., 118 at 1399 n.62. 44 Kane Decl. ¶ 13, 44 TTABVUE 5. 45 41 TTABVUE 88. 46 41 TTABVUE 90. 47 Mr. Kane testified that Opposer’s Facebook page has more than 3,300 followers and more than 9,700 visits. 43 TTABVUE 5. Opposition No. 91219162 - 16 - Turning to the mark’s conceptual strength, “Adirondack” is defined as “Adirondacks,” i.e., the Adirondack Mountains in New York.48 As such, it is a geographically descriptive term. “Geographically descriptive terms are generally regarded as inherently weak and entitled to less protection than arbitrary or suggestive marks.” Tea Board of India v. The Republic of Tea, Inc. 80 USPQ2d 1881, 1899 (TTAB 2006). The ‘098 registration and the third-party registrations containing the term ADIRONDACK for beverages claim acquired distinctiveness, a concession that the mark in its entirety is not inherently distinctive. See Cold War Museum, Inc. v. Cold War Air Museum, Inc., 586 F.3d 1352, 92 USPQ2d 1626, 1629 (Fed. Cir. 2009). Applicant also claims acquired distinctiveness of its mark under Section 2(f). We hence find that Opposer’s mark is not a conceptually strong mark. The foregoing reflects inherent weakness in the term ADIRONDACK, average commercial strength of Opposer’s mark, and very limited third-party use and registration of ADIRONDACK-formative marks for beer. (There are more uses of ADIRONDACK for alcoholic beverages other than beer, particularly for wine.) “Great,” of course, is a laudatory term, meaning “chief or principal: the great house on the estate.”49 Applicant’s mark is more similar to Opposer’s mark than are any of the other third-party marks that we consider. On balance, we find that Opposer’s mark is a weak mark, but not so weak so as to allow the registration of Applicant’s 48http://dictionary.reference.com/browse/Adirondack+Mountains, dictionary.com, 52 TTABVUE 146. 49 https://www.ahdictionary.com/word/search.html?q=great. From The American Heritage Dictionary of the English Language (5th ed. 2018). We take judicial notice of this definition. Opposition No. 91219162 - 17 - ADIRONDACK formative mark for the identical goods, and that this finding does not detract from a likelihood of confusion.. Cf. Juice Generation, Inc. v. GS Enters. LLC, 115 USPQ2d at 1675 (weakness shown by at least 26 third-party uses and registrations containing the same phrase for the same services); Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 116 USPQ2d at 1136 (third-party weakness evidence characterized as “voluminous”). D. Actual Confusion. Next, we assess Opposer’s argument that there have been numerous instances of actual confusion.50 If proven, evidence of actual confusion is entitled to great weight. In re Majestic Distilling Co., 65 USPQ2d at 1205 (“A showing of actual confusion would of course be highly probative, if not conclusive, of a high likelihood of confusion.”). Mr. Carr, Applicant’s President and Fed. R. Civ. P. 30(b)(6) witness, testified as follows:51 Q. Do you have any understanding of whether the public would be confused by your term, Adirondack Brewery, and the term Great Adirondack Brewing Company for beer? A. The public, over the last two years, has become more confused. *** Q. And when did you first became [sic] aware that there was some confusion in the public between the two names? A. It has been increasing the last two years. 50 Opposer’s brief at 15, 63 TTABVUE 22. 51 41 TTABVUE 179-181. Opposition No. 91219162 - 18 - Opposer asserts the following as examples of actual confusion: ● Product reviews, feedback and photographs placed by beer drinkers on Untappd.com52 which identify Opposer as the source of Applicant’s beers;53 ● Listings of the wrong party’s beer on Untappd.com brewery pages, which identify beers brewed by a particular brewery;54 ● A TheWhiskeyWash.com article which identifies Opposer as the company that brewed a “wash” for the whisky; Applicant’s marketing director, Mr. Cassella, later posted a comment to the article stating “[j]ust wanted to clarify that the wash is brewed here at Adirondack Brewery, Not Great Adirondack Brewing Co. We are located in Lake George and they are in Lake Placid. Different breweries”;55 ● Customer feedback on Opposer’s Facebook page referring to a beer facility in Lake George, New York, where Opposer has no operations but where Applicant is located;56 52 Mr. Kane testified that “Untappd.com is a social media website that allows beer drinkers to identify beers they are drinking, comment or review beers, ‘check-in’ or tag the location where they are drinking, and/or post photographs.” Kane Decl. ¶ 26, 43 TTABVUE 9. 53 Kane Decl. ¶¶ 27-28, 43 TTABVUE 10-11. 54 Kane Decl. ¶ 29, 43 TTABVUE 10. 55 41 TTABVUE 38-39. 56 Opp. Trial Exhibit 3-9 and 14; 41 TTABVUE 18-19; Kane Decl. ¶ 32, 43 TTABVUE 11. Mr. Carr also testified that he was aware of a comment by one of Applicant’s Facebook followers “raising issues” of confusion between Applicant’s and Opposer’s marks. 41 TTABVUE 184- 185. Opposition No. 91219162 - 19 - ● Signage identifying Applicant rather than Opposer as the source of a beer at a tasting event;57 ● A tap handle identifying Opposer’s “Abbey Ale” under the ADK Brewery tap handle;58 57 Exh. 16, Opposer’s Not. of Rel., 41 TTABVUE 54; Kane Decl. ¶ 34, 43 TTABVUE 12. 58 41 TTABVUE 55; Kane Decl. ¶ 34, 43 TTABVUE 12. ADK Brewery refers to Applicant. Neither of the marks involved in this proceeding appears on the tap handle; the photograph hence has limited probative value. Opposition No. 91219162 - 20 - ● A proposal and correspondence for brewing equipment received by Opposer intended for Applicant;59 ● An article about Applicant which is posted on Opposer’s Brewbound.com brewery page.60 Brewbound.com “is a website that provides news about the craft beer industry” and “provides a dedicated webpage for certain breweries where news can be posted regarding the brewery”;61 ● A keg with a label containing Opposer’s name was returned to Applicant by the distributor;62 and ● Mr. Pouliot, a distributor of Opposer’s goods in New York State, testified that when he first mentioned Opposer’s beer during sales calls, he believed that his customers were under the impression that he was referring to Applicant and explained the origin of Opposer and differentiated Opposer from Applicant.63 Mr. Carr states that he reviewed Opposer’s evidence of actual confusion and finds that they are “simple mistakes by people consuming our beer and thinking it was that of Opposer”;64 and that the Untappd.com evidence “allows beer drinkers to identify beers they are drinking at the time they are drinking, and … those under the influence of alcohol can be unreliable, particularly when it comes to choosing options on a small smartphone screen.”65 He also notes that “there are about 42,0385 [sic] ratings of our beers posted on untapd.com, along with 3594 Likes posted, but we often encounter completely wrong postings about our beers on this site. For example, we 59 Kane Decl. ¶ 35, 43 TTABVUE 12. 60 44 TTABVUE 12. 61 Kane Decl. ¶ 36, 43 TTABVUE 12. 62 44 TTABVUE 13; 41 TTABVUE 176-177. 63 Pouliot Decl., 40 TTABVUE 2-3. 64 Carr. Decl. ¶ 31, 45 TTABVUE 10. 65 Carr. Decl. ¶ 32, 45 TTABVUE 10. Opposition No. 91219162 - 21 - have encountered our brands names being under other breweries, or our brand names being truncated or misstated by users of Untappd.”66 As for Opposer’s Exhibit 4, i.e.: Mr. Carr states that the reviewer is in Opposer’s brew pub claiming to be drinking one of Opposer’s beers but is actually drinking Applicant’s beer, and that “due to the algorithm and alphabetical nature of search terms, Adirondack Brewery often shows up first; commenters are likely to post to the first name they see, regardless of accuracy.”67 His response to the Facebook posting is that “[e]rrors run rampant on Facebook; to suggest that social media is without fault is foolish, particularly given that social media is popular with users of smartphones, with small screens and large fingers to complicate the issue.”68 66 Carr. Decl. ¶ 32, 45 TTABVUE 10. 67 Carr. Decl. ¶ 33, 45 TTABVUE 10. 68 Carr. Decl. ¶ 36, 45 TTABVUE 11. Opposition No. 91219162 - 22 - With regard to the photographs of the tap handle and sign, Mr. Carr states that distributors customarily give out signs and tap handles to bars and restaurants; and that the signs refer to the supplier of the sign and the “Abby Ale” note “proves nothing other than convenient use by the staff of things on hand, because Great Adirondack’s distributor neglected to provide their (Opposer’s) customary tap handle.”69 As for the remaining instances Opposer offers as evidence of actual confusion, Applicant states that the letter sent to Opposer intended for Applicant may have been as a result of some contact that Opposer had with the supplier who sent the letter; that the news release concerning Applicant on Opposer’s Brewbound.com webpage may have been put there by a computer algorithm that collects content and data; and that Opposer is the cause of certain instances of confusion by not consistently using the term GREAT, such as in the registered domain name www.adirondackbrewing.com and adksteakandseafood.com.70 Mr. Carr’s testimony regarding Opposer’s examples of actual confusion raises questions as to whether actual confusion occurred among purchasers. We have recognized previously regarding instances of consumer confusion, “[w]ithout direct testimony from these [allegedly confused] individuals, there is insufficient information to ascertain what they were thinking, or what caused the purported confusion.” Mini Melts, Inc. v. Reckitt Benckiser LLC, 118 USPQ2d 1464, 1475 (TTAB 2016). Mr. Carr’s Rule 30(b)(6) deposition testimony is clear, however; distributors 69 Carr. Decl. ¶ 37, 45 TTABVUE 10. 70 Carr Decl. ¶¶ 39-41, 45 TTABVUE 12. Opposition No. 91219162 - 23 - have reported confusion in 2015 and the consuming public, over the last two years, has become more confused. These admissions cannot be ignored. We conclude based on the record as a whole that there have been instances of purchaser and distributor confusion. As noted, evidence of actual confusion is entitled to great weight. In re Majestic Distilling Co., 65 USPQ2d at 1205. E. The Similarity or Dissimilarity of the Marks. We now turn to the du Pont factor concerning the similarities or dissimilarities of the marks, and compare the marks for similarities and dissimilarities in appearance, sound, connotation and commercial impression. Palm Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 73 USPQ2d at 1692. While marks must be compared in their entireties and the analysis cannot be predicated on dissecting the marks into their various components, different features may be analyzed to determine whether the marks are similar. See In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985); Franklin Mint Corp. v. Master Mfg. Co., 667 F.2d 1005, 212 USPQ 233, 234 (CCPA 1981) (“It is axiomatic that a mark should not be dissected and considered piecemeal; rather, it must be considered as a whole in determining likelihood of confusion.”); Joel Gott Wines LLC v. Rehoboth Von Gott Inc., 107 USPQ2d 1424, 1430 (TTAB 2013) (citing Price Candy Co. v. Gold Medal Candy Corp., 220 F.2d 759, 105 USPQ 266, 268 (CCPA 1955)). Similarity in any one of the elements of sound, appearance, meaning, or commercial impression is sufficient to support a determination of likelihood of confusion. See, e.g., Krim-Ko Corp. v. Coca- Cola Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968); In re Mr. Recipe, LLC, 118 Opposition No. 91219162 - 24 - USPQ2d 1084, 1089 (TTAB 2016); Eveready Battery Co. v. Green Planet Inc., 91 USPQ2d 1511, 1519 (TTAB 2009). In addition, where, as here, the goods at issue are identical, “the degree of similarity necessary to support a conclusion of likely confusion declines.” Century 21 Real Estate Corp. v. Century Life of Am., 23 USPQ2d at 1700. Opposer’s mark is GREAT ADIRONDACK BREWING COMPANY and Applicant’s mark is ADIRONDACK BREWERY. There is no difference in meaning between “brewing company” and a “brewery”; both are generic terms for a beer producer. The dominant term in Opposer’s mark is ADIRONDACK, with GREAT being a laudatory term meaning “chief or principal.” ADIRONDACK is similarly the dominant term in Applicant’s mark being its only non-generic term, which has not been disclaimed. We therefore find the dominant terms in each mark are identical, and because of the identity in dominant terms, the marks are similar in appearance and sound. BREWING COMPANY and BREWERY in the respective marks have very similar meanings and do little to distinguish the marks in meaning or commercial impression. Mr. Carr’s further testimony attests to the similarity of the marks:71 Q. Any other reports to you of confusion between Great Adirondack Brewing and your beer? A. I think there is more of a question of why are they using a name that sounds so similar to yours, is more of it. Q. Who says that? 71 41 TTABVUE 173-175, 179-180. Opposition No. 91219162 - 25 - A. Distributors. Just everyone’s general comments in the last two years. *** Q. Do you have any understanding of whether the public would be confused by your term, Adirondack Brewery, and the term Great Adirondack Brewing Company for beer? A. The public, over the last two years, has become more confused. Often the term “Great” is faded out and just Adirondack Brewing Company shows up. That has created a lot of confusion with consumers. Q. When you’re referring to the term “Great” is faded out, are you saying – A. Or reduced and the font side is smaller. There is an ad they put out a couple of years ago and Great was small and Adirondack was bigger, and that created some confusion. People thought I was actually doing that advertising. In view of the foregoing, we find the marks to be very similar. F. The Extent to Which Applicant has a Right to Exclude Others from Using its Mark Applicant maintains that it has the right to exclude others from using its mark based on extensive use since 1999,72 its marketing expenses, news articles discussing Applicant, distribution throughout New York State to more than 1,000 retail accounts including bars, restaurants, and beverage centers, Mr. Kane’s admission that Applicant is a bigger company than Opposer, Mr. Carr’s testimony that Applicant is producing 8,000 barrels of beer per year and the recognition by the National Brewers 72 Opposer maintains that Applicant has only established use since 2010. Reply at 4, 69 TTABVUE 8. Opposition No. 91219162 - 26 - Association of Applicant as the largest brewpub in New York State based on volume of beer sold.73 Even with long use, Applicant has not established that it has any significant right to exclude others from using its mark. Applicant’s use of its mark appears limited to New York State and its sales are not sufficient to establish an appreciable level of consumer recognition. The National Brewers Association characterizes Applicant as a “brewpub,” i.e., “a restaurant that sells beverages brewed on the premises.74 Mr. Carr characterizes Applicant as a microbrewery,75 i.e., “a small brewery making specialty beer in limited quantities.”76 Microbreweries and brewpubs at single locations typically have limited sales, suggesting that the 8,000 barrels of beer per year produced by Applicant is relatively small. Further, there is no evidence that Applicant has successfully asserted its alleged right to “exclude” anyone from using the same mark or any similar mark. McDonald’s Corp. v. McSweet, LLC, 112 USPQ2d 73 66 TTABVUE 30-31. Applicant also relies on an email from an individual who Applicant maintains is a distributor of Opposer’s goods. The email states that Applicant’s goods were in distribution prior to Opposer’s goods, and were present first in the markets in which Opposer’s distributors were hoping to sell Opposer’s goods. There is no sworn testimony from this individual. We do not give much weight to this statement made in an email; the record has no information about who this individual is or his background. Further, Applicant does not contend that he is an officer, employee, agent or authorized person of Opposer. 74 From https://www.merriam-webster.com/dictionary/brewpub. We take judicial notice of this definition. 75 Carr Decl. ¶ 8, 45 TTABVUE 3. 76 https://www.merriam-webster.com/dictionary/microbrewery. We take judicial notice of this definition. Opposition No. 91219162 - 27 - 1268, 1284-85 (TTAB 2014). For these reasons, we find that this du Pont factor is neutral.77 G. Bad Faith The Board has recognized that we may consider bad faith in the likelihood-of- confusion analysis under the thirteenth du Pont factor. L.C. Licensing Inc. v. Berman, 86 USPQ2d 1883, 1890 (TTAB 2008). Opposer relies on the following to support its contention of bad faith: ● in 2015, Mr. Carr purchased the domain name greatadirondackbrewing.com and had the URL direct to Applicant’s website for about one year; and78 ● Applicant was found guilty of willful infringement in an action by Moosehead Breweries involving the term “Moose.”79 According to Opposer, “Applicant’s history of willfully disregarding third party trademark rights, its registration of domain names incorporating the GREAT ADIRONDACK BREWING COMPANY® Mark, and using those domains to redirect visitors to Applicant’s website evidences Applicant’s bad faith intent to cause 77 “Du Pont factor eleven is apparently intended to draw attention to the strength of applicant or registrant’s common law rights to exclude others. But if the other factors indicate that there is a likelihood of confusion, the strength of the applicant or registrant’s rights vis-a-vis third parties should be irrelevant.” 3 T.J. McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, §24:43 (5th ed. 2018 update). 78 41 TTABVUE 191-194. 79 41 TTABVUE 230-231. Opposition No. 91219162 - 28 - consumer confusion.”80 Opposer relies on court documents from the prior proceeding and Mr. Carr’s acknowledgement that had the URL direct to Applicant’s website.81 Applicant responds that during this proceeding, Opposer’s website’s HTML code included Applicant’s mark as a meta tag keyword for search engines;82 that Opposer’s use of Applicant’s mark in its HTML code means that an Internet search of Applicant’s mark would return a result for Opposer; that during the course of this proceeding, another allegedly “bad faith” event involving an advertisement (designated confidential and hence not specifically identified) occurred; that Opposer therefore has unclean hands; and concludes, “[t]his DuPont Factor, when considered in the light of accurately discussed facts, case law, and affirmative evidence of Opposer’s own bad actions, is neutral or favorable to Applicant in a likelihood of confusion analysis.”83 Because both parties engaged in similar behavior, we find that the domain registration and the direction of internet searches to the other party’s website is not evidence of bad faith and is not unclean hands. Further, what happened in another proceeding involving different marks is irrelevant to the question of likelihood of confusion between the two marks involved in this proceeding. The issue of bad faith is neutral in our analysis, and to the extent that Applicant raised an affirmative defense of unclean hands, it is denied. 80 Opposer’s brief at 19, 63 TTABVUE 26. 81 41 TTABVUE 193-194. 82 App. Trial Exh. EEE, 52 TTABVUE 337 – 341. 83 Applicant’s brief at 32, 66 TTABVUE 39. Opposition No. 91219162 - 29 - H. Conclusion. We have considered all of the evidence of record pertaining to the likelihood of confusion, as well as all of the arguments related thereto, including any evidence or arguments not specifically discussed in this opinion. The goods are identical, and we presume that the trade channels and classes of consumers are also identical. Opposer’s mark is not a commercially strong or inherently strong mark and Applicant’s showing of third party uses and registration of similar marks is not impressive; most of Applicant’s evidence concerns alcoholic beverages other than beer. The marks are very similar and consumers are likely to exercise a relatively low degree of care when making purchasing decisions. There have already been instances of actual confusion and evidence of actual confusion is entitled to great weight. In re Majestic Distilling Co., 65 USPQ2d at 1205. We therefore find that Applicant’s mark for beer when used on identical goods, is likely to be confused with Opposer’s mark for the identical goods. Our conclusion is consistent with Applicant’s statement in its Facebook page, made while this case was pending:84 The issue came about when Great Adirondack Steak and Seafood recently attempted to trademark and therefore have sole use of “Great Adirondack Brewing Company”. While we’re all for trademark law and believe that it protects creativity, the trademarking of that combination of terms would cause clear confusion between our two brands. Decision: The opposition is sustained and registration to Applicant is refused. 84 Opposer’s brief at 5, 63 TTABVUE 12; 41 TTABVUE 18-19.