It is well recognized that confusion may be likely to occur from the use of the same or similar marks for goods, on the one hand, and for services involving those goods, on the other. See, e.g., In re Detroit Athletic Co., 903 F.3d 1297, 1307, 128 USPQ2d 1047, 1052 (Fed. Cir. 2018) (finding clothing and sports apparel retail services related as "confusion is likely where one party engages in retail services that sell goods of the type produced by the other party"); In re Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 464-65, 6 USPQ2d 1025, 1025-26 (Fed. Cir. 1988) (finding furniture and retail grocery and general merchandise store services related); In re H.J. Seiler Co., 289 F.2d 674, 129 USPQ 347 (C.C.P.A. 1961) (finding catering food services related to smoked and cured meats); In re Country Oven, Inc., 2019 USPQ2d 443903, at *13-14 (TTAB 2019) (finding bread buns and retail bakery shops related); In re United Serv. Distribs., Inc., 229 USPQ 237, 239-40 (TTAB 1986) (finding skin cream and distributorship services in the field of health and beauty aids related); In re Phillips-Van Heusen Corp., 228 USPQ 949, 951 (TTAB 1986) (finding clothing and restaurant services related); In re U.S. Shoe Corp., 229 USPQ 707, 708 (TTAB 1985) (finding retail women’s clothing store services and uniforms related); Steelcase Inc. v. Steelcare Inc., 219 USPQ 433, 435 (TTAB 1983) (finding refinishing of furniture, office furniture, and machinery related to office furniture); Corinthian Broad. Corp. v. Nippon Elec. Co., Ltd., 219 USPQ 733, 736 (TTAB 1983) (finding transmitters and receivers of still television pictures related to television broadcasting services).

When the goods and services in question are well known or otherwise generally recognized as having a common source of origin, the burden of establishing relatedness is easier to satisfy. In re St. Helena Hosp., 774 F.3d 747, 113 USPQ2d 1082 (Fed. Cir. 2014). For example, relatedness would generally be recognized when the services clearly include or encompass the goods in the identification, such as when the services are "brewpubs" and the goods are "beer" or when the services are "electronic transmission of data and documents via computer terminals" and the goods are "facsimile machines, computers, and computer software." In re Coors Brewing Co., 343 F.3d 1340, 1347, 68 USPQ2d 1059, 1064 (Fed. Cir. 2003); Hewlett-Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 1268, 62 USPQ2d 1001, 1005 (Fed. Cir. 2002).

However, when the relatedness of the goods and services is not evident, well known, or generally recognized, "something more" than the mere fact that the goods and services are used together must be shown. In re St. Helena Hosp., 774 F.3d at 754, 113 USPQ2d at 1087 (finding that substantial evidence did not support relatedness of hospital-based residential weight and lifestyle program and printed materials dealing with physical activity and fitness). Therefore, when comparing services such as "restaurant services" with less apparently related goods such as "beer," or "cooking classes" with "kitchen towels," "something more"—beyond the fact that the goods are used in the provision of the services—must be shown to indicate that consumers would understand such services and goods to emanate from the same source. Although the Court in Coors found evidence of "a few registrations" covering both the goods and services at issue insufficient, see In re Coors Brewing Co., 343 F.3d at 1346, 68 USPQ2d at 1063, examples of actual use of a mark for both the goods and services at issue and/or evidence of a large number of third-party registrations covering both the goods and services at issue may suffice. When such evidence is not readily available through searches of electronic resources, examining attorneys should consider issuing an information request under 37 C.F.R. §2.61(b), asking whether the applicant provides both the goods and services at issue and inquiring whether the applicant is aware of others who provide both the goods and services at issue, and if so, requesting additional information about them.

While likelihood of confusion has often been found where similar marks are used in connection with both food or beverage products and restaurant services, there is no per se rule to this effect. See Lloyd’s Food Prods., Inc. v. Eli’s, Inc., 987 F.2d 766, 768, 25 USPQ2d 2027, 2030 (Fed. Cir. 1993); In re Opus One Inc., 60 USPQ2d 1812, 1813 (TTAB 2001). Thus, the relatedness of such goods and services may not be assumed and the evidence of record must show " something more" than that similar or even identical marks are used for food products and for restaurant services. In re Coors Brewing Co., 343 F.3d 1340, 1345, 68 USPQ2d 1059, 1063 (Fed. Cir. 2003) (quoting Jacobs v. Int'l Multifoods Corp., 668 F.2d 1234, 1236, 212 USPQ 641, 642 (C.C.P.A. 1982)); see also In re Giovanni Food Co., 97 USPQ2d 1990, 1991 (TTAB 2011).

In Coors, the examining attorney introduced evidence from several sources discussing the practice of some restaurants to offer private label or house brands of beer; evidence that brewpubs who brew their own beer often feature restaurant services; and copies of several third-party registrations showing that a single mark had been registered for both beer and restaurants services. 343 F.3d at 1345, 68 USPQ2d at 1063. However, applicant countered with evidence that while there are about 1,450 brewpubs and microbreweries in the United States, there are over 800,000 restaurants, which means that brewpubs and microbreweries account for only about 18 one-hundredths of one percent of all restaurants. Id. at 1346, 68 USPQ2d at 1063. Noting that "[t]here was no contrary evidence introduced on those points," the court found that:

While there was evidence that some restaurants sell private label beer, that evidence did not suggest that such restaurants are numerous. And although the Board had before it a few registrations for both restaurant services and beer, the very small number of such dual use registrations does nothing to counter Coors’ showing that only a very small percentage of restaurants actually brew their own beer or sell house brands of beer; instead, the small number of such registrations suggests that it is quite uncommon for restaurants and beer to share the same trademark. Thus, the evidence before the Board indicates not that there is a substantial overlap between restaurant services and beer with respect to source, but rather that the degree of overlap between the sources of restaurant services and the sources of beer is de minimis. We therefore disagree with the Board’s legal conclusion that Coors’ beer and the registrant’s restaurant services are sufficiently related to support a finding of a likelihood of confusion.

Id. at 1346, 68 USPQ2d at 1063–64.

In the following cases, the Board found the "something more" requirement to be satisfied: Tao Licensing, LLC v. Bender Consulting Ltd., 125 USPQ2d 1043, 1060 (TTAB 2017) (holding TAO VODKA for alcoholic beverages likely to cause confusion with the mark TAO for restaurant and nightclub services where the record showed that petitioner used the TAO mark to promote alcoholic beverages, its primary source of revenue, and that its menus featured beverages with TAO-formative names, amongst other business practices linking the TAO mark with alcohol, which met the requisite "something more" to establish that the goods and services were related); In re Accelerate s.a.l., 101 USPQ2d 2047, 2050-51 (TTAB 2012) (holding COLOMBIANO COFFEE HOUSE, for providing food and drink, likely to cause confusion with the registered certification mark COLOMBIAN, for coffee, given the inclusion of COFFEE HOUSE in applicant’s mark, third-party registrations covering both restaurant or café services and coffee beverages, and because coffee houses specialize in coffee beverages); In re Opus One Inc., 60 USPQ2d at 1814-16 (holding use of OPUS ONE for both wine and restaurant services likely to cause confusion, where the evidence of record indicated that OPUS ONE is a strong and arbitrary mark, that it is common in the industry for restaurants to offer and sell private label wines named after the restaurant, and that registrant’s wines were served at applicant’s restaurant); In re Comexa Ltda., 60 USPQ2d 1118, 1123 (TTAB 2001) (holding AMAZON and parrot design for chili sauce and pepper sauce and AMAZON for restaurant services likely to cause confusion, based on, inter alia, 48 use-based third-party registrations showing registration of the same mark for both sauces and restaurant services, and the determination that "of all food products[,] sauces . . . are perhaps the ones most likely to be marketed by the restaurants in which those items are served"); In re Azteca Rest. Enters., 50 USPQ2d 1209, 1211 (TTAB 1999) (holding AZTECA MEXICAN RESTAURANT for restaurant services and AZTECA (with and without design) for Mexican food items likely to cause confusion, where the AZTECA MEXICAN RESTAURANT mark itself indicated that the relevant restaurant services featured Mexican food and the evidence showed that the goods at issue "are often principal items of entrees served by . . . Mexican restaurants"); In re Golden Griddle Pancake House Ltd., 17 USPQ2d 1074 (TTAB 1990) (holding GOLDEN GRIDDLE for table syrup and GOLDEN GRIDDLE PANCAKE HOUSE for restaurant services likely to cause confusion, based on third-party registration evidence showing that entities offering restaurant services may also offer a variety of goods under the same mark, as well as findings that "restaurants frequently package certain of their products for retail sale" and that the GOLDEN GRIDDLE PANCAKE HOUSE mark itself suggests that the relevant restaurant services feature pancakes and pancake syrup); In re Mucky Duck Mustard Co., 6 USPQ2d 1467, 1469 (TTAB) (holding use of applied-for mark, MUCKY DUCK and duck design, for mustard, and registered mark, THE MUCKY DUCK and duck design, for restaurant services, likely to cause confusion, in view of the substantial similarity of the marks and the "unique and memorable nature" of registrant’s mark, and given that "mustard is . . . a condiment which is commonly utilized in restaurants by their patrons" and that "restaurants sometimes market their house specialties, including items such as salad dressings, through retail outlets"), aff’d per curiam, 864 F.2d 149 (Fed. Cir. 1988). Cf. In re Giovanni Food Co., 97 USPQ2d at 1991 (finding the Office had not met its burden of proving likelihood of confusion where the marks were JUMPIN’ JACKS for barbeque sauce and JUMPIN JACK’S for catering services, because evidence indicating that some restaurants also provide catering services and sell barbeque sauce was not sufficient to establish catering services alone are related to barbeque sauce); Steve’s Ice Cream v. Steve’s Famous Hot Dogs, 3 USPQ2d 1477, 1478 (TTAB 1987) (holding use of applicant’s mark, STEVE’S and design comprising hot dog characters, for restaurants featuring hot dogs, and registrant’s mark STEVE’S, for ice cream, not likely to cause confusion, where the marks differed and there was no evidence of record that applicant made or sold ice cream or that "any one business makes and sells ice cream under the same mark in connection with which it renders restaurant services").