In Re R.S. LIPMAN BREWING COMPANY, LLC
23-2131
Fed. Cir.Apr 14, 2025Background
- R. S. Lipman Brewing Company (“Lipman”) sought to register “CHICKEN SCRATCH” for beer with the USPTO.
- The USPTO examiner refused registration, citing a likelihood of confusion with an existing “CHICKEN SCRATCH” mark for restaurant services.
- The TTAB upheld the examiner’s refusal, finding the marks identical and goods/services sufficiently related.
- Key factors on appeal were the similarity of the marks and the relatedness of beer to restaurant services.
- The appeal was to the Federal Circuit, which reviews legal conclusions de novo and factual findings for substantial evidence.
Issues
| Issue | Lipman's Argument | USPTO's Argument | Held |
|---|---|---|---|
| Whether “CHICKEN SCRATCH” is a weak mark | The mark is conceptually weak, especially given other registrations and suggestive meaning | The mark is not conceptually weak and deserves normal protection | Not weak; normal protection applies |
| Similarity of marks’ commercial impression | Mark for beer and restaurants gives different commercial impression; beer label references chicken feed | Both impart similar impressions, are identical in sight and sound | Marks’ similarity weighs in favor |
| Relatedness of goods/services (“something more” standard) | Evidence does not show sufficient overlap; relied on Coors precedent | Provided significant examples of restaurants selling own beer under same mark | Sufficient “something more” shown |
| Appropriate weighing of evidence by TTAB | Board misweighed and overlooked Lipman’s evidence | Board considered all relevant evidence and made supported findings | Board’s analysis supported |
Key Cases Cited
- In re E.I. DuPont DeNemours & Co., 476 F.2d 1357 (CCPA 1973) (establishes factors for likelihood of confusion in trademark cases)
- Juice Generation, Inc. v. GS Enters., LLC, 794 F.3d 1334 (Fed. Cir. 2015) (standards for reviewing TTAB factual findings)
- In re Coors Brewing Co., 343 F.3d 1340 (Fed. Cir. 2003) (interprets the “something more” standard for food/beverage/service mark relatedness)
- Jack Wolfskin Ausrustung Fur Draussen GmbH & Co. KGAA v. New Millennium Sports, S.L.U., 797 F.3d 1363 (Fed. Cir. 2015) (about determining likelihood of confusion as a matter of law on factual findings)
- Coach Services, Inc. v. Triumph Learning LLC, 668 F.3d 1356 (Fed. Cir. 2012) (proper test for similarity of marks)