[00:00:00] Speaker 00:
Dean, Brothers Craft Brewing LLC against Brothers Franchising.

[00:00:06] Speaker 00:
Mr. Friedman.

[00:00:08] Speaker 03:
Thank you, Your Honor.

[00:00:09] Speaker 03:
May it please the Court, the Board's primary error in this opposition proceeding was determining that Brothers Franchising demonstrated the requisite something more necessary to establish a likelihood of confusion.

[00:00:24] Speaker 03:
There are three key points I'd like to address this morning.

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The first, in which the board correctly found, was that the something more requirement from the Jacobs Corps line of cases indeed does apply here, notwithstanding Appellee's registration for bar services.

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The second point and the most significant point is being that the something more requirement does apply, it was not met here.

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The evidence in the record relied upon by the board

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at bottom really establishes that Brothers Franchising indeed does provide bar services.

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But we know that.

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That isn't the something more.

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That is the beginning of the something more analysis.

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There has to be something more beyond those bar services.

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And the facts relied upon, which I'll discuss further in the argument, simply go to the fact that these are indeed bar services.

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There's also a key point here, which I want to make sure is clear before this court,

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that there is something unique about bar services that are different than even the restaurant line of cases.

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And what's evident on the record here is that bar services like Appellee, like Brothers Franchising, they are selling third-party branded beer.

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It's not simply that they don't produce the beer themselves, that they don't brew it or sponsor it.

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It is that they specifically advertise and express on their menus, in their establishments, that these beers

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are sourced from other companies, be it Budweiser, Miller, Coors, what have you, that these are third party branded.

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They're in fact distancing themselves as the source of the beer.

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And the third point here is that the lack of something more is just positive in this case, even if one were to accept the board's other findings on the other DuPont factors such as similarity, strength of the mark, even given those board findings, which we continue to maintain more in error,

[00:02:23] Speaker 03:
is nevertheless this positive that there was not something more here, and that in itself are grounds for reversal.

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I'd like to begin, as I said, by laying out that something more indeed applies, as the board did correctly find, but is at issue an appeal based on Appellee's arguments.

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The fact that Appellee's registration includes bar services does not remove it from the core Jacob's paradigm of requiring something more.

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The argument is essentially, well, bar services is something more.

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But that can't be the case.

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Because the premise, of course, which involved a restaurant, is that restaurants serve beer.

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If restaurants didn't serve beer, there'd be no Coors case to begin with.

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So the Coors-Jacob's paradigm of something more begins at a place where something more, where a beer is sold at the establishment, but something more is required.

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So simply the fact that adding bar services to the registration underscores that there has to be something more.

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It doesn't resolve to something more.

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I would also point to the TAL licensing decision, which is a published precedent of the board, where the board looked at vodka as related to nightclub services.

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And we would submit that vodka is to nightclub services as beer is to bars.

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And that that's how licensing case demonstrates that it's the board's understanding that something more is required as it's properly found here.

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And I would also address the Never Forget Brands, which was cited by Appellee in their opposition, which came out after the board proceeding.

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And a few quick points about that case.

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First, you know, obviously it's non-precedential.

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And it's of no more value than the non-precedential decisions by the board such as tin roof brewing where the board did in fact require something more to be shown as between a bar, bar services and beer and didn't find it.

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The other point is an even more recent case from February of brawling bear brewing.

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It's also non-precedential and was decided just a few months ago and did apply to something more again as to between beer and bar services.

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and found that it was not met.

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The point here is not to go back and forth between non-precedential TTAB decisions, understanding that those might have limited value at this stage.

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The point is simply to point out that Never Forget Brands does not evidence any kind of sea change or change in approach by the board.

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Next, I'd like to address the most significant point here is that the record lacks evidence of the requisite something more.

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Based on its opinion, it's clear the board relied on three facts in the record, or I guess kind of family facts in the records to support its finding that something more was established.

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The first is that with respect to Appellee Brothers franchising, the board found that bar services comprised the most significant portion

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of opposers bar and restaurant services, both in ratio of bar to restaurant services, and that the bar is the focal point in the establishment.

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This goes to my initial point that those types of facts simply point out that they do in fact provide bar services.

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The amount of bar services to restaurant services does not make it any more likely that a consumer would confuse the source of origin between the beer

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and the between Brothers BCB's beer that they're micro-brewing and the third-party branded bar services being provided by Appellee.

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Certainly the physical size of the bar, which is something the board apparently relied upon, the physical size of the bar and the placement of the bar in Brothers franchising establishments in no way leads to further something more as to confusion

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with respect to who is brewing this beer.

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What is the source of the beer?

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What is the origin of the beer?

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That is the something more test.

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Not whether generally speaking, you know, you can get beer at bars.

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Surely you can.

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That is not in dispute.

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But whether or not, what facts are there?

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What something more is there in the record that there's going to be confusion for a consumer as to the origin and the size and placement of a bar does not make it any more likely that somebody is going to think that establishment is brewing beer.

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Also point out that with respect to the board's view on ratio of bars to restaurant services, beer is still only 25% of their sales.

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That's less than food.

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That's less than liquor, which is 30%.

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So it's not even the most significant part of their bar services is the sale of beer.

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The second factor relied upon by the court in finding something more

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And it's a significant piece of the board's decision is the menu, is the menu that brothers use.

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And for point of reference, I would direct the court's attention to appendix, to page 647 of the appendix, which is the menu.

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The board found that the fact that the menu itself is branded with the brother's franchising mark and that it has a whole lot of beer on it, up to 45 beers on it, was evidence of something more.

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is our position that actually the opposite is true.

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That if you take a close look at the menu, it actually shows why something more isn't here.

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And what I'd like to point the court to is next to each beer that they sell, so in the left-hand column is what the beer is.

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It's Miller Lite, Coors Light, Bud Light, Budweiser, Ying Ling, et cetera.

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They have a second column that says origin, and that origin

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actually points to the city and state it's made.

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So the information on that menu is the third-party business, the third-party brewer that is producing the beer, and in fact, where specifically they're located.

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This menu makes it clear that the beer is not a product of the Brothers franchising establishments.

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It is third-party sourced.

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They advertise it.

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They express it.

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And the fact that there are 45 of them, in fact, evidence is

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how much third-party beer they are selling.

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So Appellant Brothers Craft Brewing's third-party beer, it's not a confusion factor.

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It's the opposite.

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It is showing the distance between a microbrewery, somebody who produces the beer, and a bar service, which sells third-party beer like Miller Lite, Coors Light, Budweiser.

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And the final factor is the court, or excuse me, I should say the board,

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found supported a finding of something more is the old private label sale of beer and the recent partnership between Appellee Brothers Franchising and some breweries.

[00:09:48] Speaker 03:
We'd like to address, as we have in our brief, this old private labeling beer, it's a red herring for several reasons.

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One is it ceased happening six years before Brothers Craft Brewing application.

[00:10:01] Speaker 03:
Not only did it stop six years prior to the application, out of the 25 years that Brothers Franchising had been in business, they'd only been doing that for three years.

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Three out of 25 years at two locations only for on-premises sale and only two to four cases a week.

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To put that two to four cases a week into some context according to Brothers Franchising,

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they've generated $288 million of sales in the last 10 years.

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Not only has that old label, that private label brewing, excuse me, sale of beer stopped six years prior to this application.

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When they were going on, they were clearly de minimis based on the information provided by Brothers Franchising.

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With respect to the recent partnership, point out that that occurred three years after

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brother's application.

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In fact, three years after brother's franchising filed its opposition.

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And finally, I'd like to distinguish several of the cases relied upon by brother's franchising, as tech or restaurant case, the Curry and Ahury cases, the Golden Griddle cases.

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What all those cases have in common, there are a few things.

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One, they're a restaurant.

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And the way a Mexican restaurant specializes in Mexican food, the way Curry in a Hurry specializes in Indian curry, the way Golden Griddle specializes as a restaurant in pancakes, is in no way akin to saying how a bar specializes in beer.

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The former is a subset of the restaurant business and true specialty, true specialties.

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The latter is near ubiquitous.

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This idea that bar served beer, it's not a specialty.

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It is what is expected.

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And finally, as I mentioned at the beginning, this lack of something more is dispositive here.

[00:12:02] Speaker 03:
We continue to maintain that the marks are not as similar as the board found, that the registered marks are not as strong as the board found.

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But even if they were, something more is dispositive here.

[00:12:20] Speaker 03:
Unless the court has any questions, I'll reserve my time.

[00:12:23] Speaker 00:
Any questions at the moment?

[00:12:26] Speaker 00:
All right, now you have your rebuttal time.

[00:12:28] Speaker 00:
Let's hear from the other side, Ms.

[00:12:30] Speaker 00:
Myers.

[00:12:32] Speaker 02:
Thank you, Your Honor.

[00:12:33] Speaker 02:
May it please the court?

[00:12:35] Speaker 02:
Given Appellant's arguments in its briefing and today, I will focus my time on the something more element from the Henry Coors case, because it is the primary basis on which Appellant challenges the board's decision.

[00:12:49] Speaker 02:
I'd like to make it clear that the something more

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element that's discussed in NREQORS originated and came from the Jacobs case, which is a CCPA case from 1982.

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And the way Jacobs described this element was that, quote, a party must show something more than that similar or even identical marks are used for food products and for restaurant services.

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So that is what is required by something more.

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You cannot simply say, I have a trademark that I use on a package of spaghetti.

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And here's a restaurant that uses the same trademark on its restaurant services.

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And therefore, there's confusion.

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You can't rely on that alone.

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You have to show something more.

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And this is a factual inquiry.

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And it's one that each case cited on its own facts.

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Now, despite that, appellant's appeal realized almost entirely on its rigid application of in record, which is exactly what it did in front of the board as well, rather than providing any sort of assessment of the distinct facts in this case that established something more.

[00:14:06] Speaker 02:
And we contend, therefore, that appellant's challenge to the board's decision fails for at least six reasons.

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The first one, as the board pointed out, is that the brothers' registrations in this case are for bar services in addition to restaurant services.

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Now, appellate wants to ignore that fact and act like it doesn't matter, but it is something that directly distinguishes this case from the facts in INRI CORS because the registration at issue in INRI CORS only involved restaurant services only.

[00:14:40] Speaker 00:
Well, part of their problem as well

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is that this something more is not included in the trademark and the registration.

[00:14:50] Speaker 02:
That's correct, Your Honor.

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The analysis is based on the services versus the goods, and the services identified in this registration, the registration that is issued here, involves bar services.

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And the applied for goods are beer, several varieties of beer, but we've all been treating it just as beer collectively.

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While restaurants are not necessarily associated with beer, a bar by definition is.

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And this is one of the reasons why in the Never Forget Brands board decision that appellant mentioned that is in our papers, the board decided that beer and other alcoholic beverages are inherently related to bar services because you can't have one without the other.

[00:15:36] Speaker 02:
Whereas in a restaurant example, you can have a restaurant without beer.

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You can have a restaurant without spaghetti.

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But you can't have a bar without beer.

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BCB tries to attack the Never Forget Brands decision for a variety of reasons, one of which is citing to the board's other recent decision in the brawling bear brewing case.

[00:16:00] Speaker 02:
We believe that one is distinguishable for a couple of reasons.

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The most obvious one being that that case involved a cancellation proceeding against an existing registration and therefore the registration was provided with a presumption of validity and the standard is just harder in that context in order to get a cancellation.

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And the other distinguishing feature is that in that case the petitioner did not introduce any evidence to support his claim.

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It just didn't provide any evidence during the testimony period.

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As a result, what was being asked for in that case was essentially to say, hey, we have this registration, or hey, sorry, we have this application.

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You have your registration.

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Your registration should be canceled based solely on the fact that we're applying to have these similar services and BEER.

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And the board was unwilling to do that, given the context of how that case arose involving your registration.

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Now here, as the junior user applicant, appellant enjoys no presumption of validity.

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Instead, as the board pointed out, any doubts in this case regarding whether or not there's a likelihood of confusion are to be a result against appellant as the junior user.

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Now, the second reason that we contend that BCB's argument fails is that Brothers does not merely serve beer.

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Instead, beer is the focal point of its business.

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This is something that the board walks through.

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They cited substantial evidence to support their opinions on this.

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And that is, you know, in the board decision from appendix 27 through 32.

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And this is another distinguishing point for the Henry Coors case, which was an ex parte appeal in which the restaurant registrant did not introduce any evidence showing that it even sold beer, let alone that it focused on beer.

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Here we've got evidence showing that Brothers sells a large variety of beer.

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It's a focus on its website, a focus on its menus, and it's a large portion of its business.

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25% of sales to beer is significant.

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The percentages accounted for liquor include all different types of liquor, including wine and things of that nature.

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So that's a variety of things encompassed with that percentage.

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And the food as well.

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also encompasses a variety of different food items.

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Here we're talking about just beer, and beer is 25%, which is a lot.

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So we contend that this case is more in line with the cases that have found something more because the restaurant at issue specialized in the food items identified in the application or registration.

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And these are the cases that were cited by the board in its decision on Appendix 26.

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That includes the Golden Griddle Pancake House case, the Aztega Restaurant case.

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And then we've cited some recent cases that have followed suit.

[00:19:03] Speaker 02:
The Curry in a Hurry case, the Inri Country Oven case, which is a presidential case that appellant does not address at all.

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That's one that involved bakery services and bread buns.

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And another case that is also presidential that the appellant does not address at all either, which is the Inri Accelerate case.

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And that one involved providing food and drink services.

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And on the other hand, the goods were coffee.

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But the market issue was a Colombiano coffee house.

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So it was clear that the providing good food and drink were providing coffee drinks and that the coffee goods that those

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were similar enough to establish that those goods were in fact related, which is what the something more is trying to get down to the bottom to.

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Do we have goods and services that are related?

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The third reason we believe that the board's decision is correct and that appellant's appeal should fail is that Brothers has sold its own private labeled beer under its Brothers mark.

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This is not disputed.

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It's not disputed that Brothers has done this, that they've sold private-labeled beer in bottles, that they have partnered up with breweries and, you know, used their mark on the tap handles.

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This has happened.

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And therefore, even under Appellant's very narrow reading of Henry Coors, this falls into something that is specifically identified in that case as providing something more, which is a restaurant providing a private-labeled beer.

[00:20:44] Speaker 02:
Now, the fourth reason we believe that the board decision is correct and appellant is incorrect on its appeal is in recourse does not require Brothers to brew its own beer in order to establish something more.

[00:21:00] Speaker 02:
And appellant finally conceded that fact in its reply brief on page eight that tours certainly does not require that opposer must be a brew pub to establish something more, yet the bulk of appellant's

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briefing focuses on the fact that Brothers does not brew its own beer.

[00:21:20] Speaker 02:
Well, that fact has never been in dispute, and now it's not in dispute that that's not required to show something more.

[00:21:26] Speaker 02:
And so on that point, we would just say that appellate arguments are irrelevant and certainly don't establish that the board's decision was an error.

[00:21:35] Speaker 02:
The fifth reason that Appellant's argument fails is that in this case, there is record evidence that the same mark is used in connection with both bar services and beer.

[00:21:46] Speaker 02:
The first example is the one I just spoke of, which is the fact that Brothers has used its Brothers mark on a private labeled beer, which is using the same mark in connection with beer and bar services.

[00:22:01] Speaker 02:
Brothers does have a pending trademark application for

[00:22:05] Speaker 02:
its brother's mark for use with beer.

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So this is certainly something that they intend to continue doing.

[00:22:12] Speaker 02:
This isn't, you know, some flash in the pan that has happened once and it's never going to happen again.

[00:22:18] Speaker 02:
It's been very clear from the evidence and the record that they've done it when it's made sense, when they've found the opportunity, and that they continue to have this interest in doing that in the future, given that the company does focus so much on beer and bar services.

[00:22:32] Speaker 02:
And the second example is Appellant itself, which is a fact that they largely ignore.

[00:22:38] Speaker 02:
Appellant uses the Brothers Craft Brewing Mark with its beer that it brews, but it also uses it in connection with its taproom, which is a bar.

[00:22:48] Speaker 02:
We have submitted a photo of their taproom.

[00:22:52] Speaker 02:
It's on Appendix 524, and that photo clearly shows

[00:22:57] Speaker 02:
what looks like a bar, like the definition of a bar that the board took notice of.

[00:23:04] Speaker 02:
And appellant's use of the same mark with both beer and bar services further supports the fact that we have something more in this case.

[00:23:15] Speaker 02:
And related to that point, some of these third-party registrations that appellant put in the record, those are on Appendix 17.

[00:23:24] Speaker 02:
In the board's decision, they set those forth

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Three of those actually also cover both beer and taproom services.

[00:23:33] Speaker 02:
So we do have record evidence of the same mark being used for both.

[00:23:39] Speaker 02:
So finally, the last reason why appellant's argument fails is whether there is something more is a question of fact that this court reviews for substantial evidence.

[00:23:50] Speaker 02:
And we suggest up here for the reasons I previously discussed, there is substantial evidence to support the board's decision.

[00:23:58] Speaker 02:
The board's analysis on something more was thorough.

[00:24:01] Speaker 02:
It devoted 10 pages of its 35-page decision to the question of something more.

[00:24:06] Speaker 02:
And because there is more than a scintilla of evidence supporting the board's decision, it must be upheld under those circumstances.

[00:24:17] Speaker 02:
And Your Honors, real briefly, I just want to touch on the similarity of the marks.

[00:24:22] Speaker 02:
Pelham did not address them in his remarks this morning, but we did hear some of that in the reply brief.

[00:24:30] Speaker 02:
And I just want to, again, stress the fact that the board's analysis of the similarity of the marks was correct.

[00:24:38] Speaker 02:
The question with respect to this factor is, you know, whether the words craft brewing and

[00:24:43] Speaker 02:
the brother's craft brewing mark distinguish it from appellee's brother's trademark and the answer is no.

[00:24:50] Speaker 02:
It is well established that the first word is the most dominant and that descriptive words do not provide any source identifying function.

[00:24:57] Speaker 02:
The appellant has not identified anything to dispute these standards and they were properly applied by the board.

[00:25:04] Speaker 00:
Brothers and brothers, also a descriptive word.

[00:25:08] Speaker 02:
Brothers in the context for the goods and services of bar and restaurant services is not suggestive, we would contend.

[00:25:17] Speaker 02:
We would say that it is more arbitrary in that connection because while brothers suggest a familial connection, that isn't what is being, what is claimed in the registration itself as bar and restaurant services.

[00:25:31] Speaker 02:
So the use of brothers with bar and restaurant services

[00:25:34] Speaker 02:
we would claim is not descriptive of what those services are.

[00:25:39] Speaker 02:
Where the craft brewing and the brother's craft brewing mark is descriptive of a feature of applicant's beer, which is why when they apply for their mark, they were asked to disclaim and did disclaim that element.

[00:25:54] Speaker 02:
And there are other cases that talk about how brewing company and things like that are merely descriptive and do not provide a source identifying feature

[00:26:04] Speaker 02:
that would separate the two Mercs.

[00:26:07] Speaker 02:
I think the Inri Tin Roof case that Appellant cites a few times in their briefing is one which Brewing Company was explained and they said that that did not provide any source identifying function.

[00:26:19] Speaker 02:
Also, Appellant focuses on the Brothers aspect of its Merc.

[00:26:25] Speaker 02:
It's in its marketing.

[00:26:27] Speaker 02:
There's some of that in the appendix, I would say, on page 517, 520, 522.

[00:26:34] Speaker 02:
523 and 527.

[00:26:35] Speaker 02:
You can see that on brothers labeling, it will focus on the brothers mark.

[00:26:41] Speaker 02:
There is signage that focuses on brothers as opposed to craft brewing.

[00:26:46] Speaker 02:
And this makes sense because in the eye of the consumer, they're more likely to remember the brothers than the craft brewing.

[00:26:54] Speaker 02:
And one case that talked about that in detail was the Inri Huka lit case that we cited in our papers.

[00:27:02] Speaker 02:
And they talked about the penchant of consumers to shorten marks.

[00:27:07] Speaker 02:
And even though in that case, the hookah lounge services mark consisted of four separate words, they said that what the consumers were most likely to associate with the mark was the word lit or lit hookah as opposed to lounge or any of these other words that go with a variety of marks.

[00:27:27] Speaker 02:
So we believe the board's decision on that is also correct.

[00:27:32] Speaker 02:
And just one final remark, I'd like to point out that the similarity of the marks is another reason that distinguishes this case from Henry Coors.

[00:27:42] Speaker 02:
Henry Coors, while they found the marks similar, it seemed clear that the Federal Circuit was a little on the fence on that question because that case involved two distinct design marks.

[00:27:55] Speaker 02:
that each had their own illustration associated with that.

[00:27:59] Speaker 02:
We're here.

[00:28:00] Speaker 02:
We have two word marks without any claim to font or style or anything like that.

[00:28:05] Speaker 02:
So we are dealing strictly with word marks, which makes confusion more likely given the fact that we have brothers as the lead dominant word and both marks.

[00:28:18] Speaker 02:
So, Your Honors, we were just asked that this court affirm the board's decision.

[00:28:23] Speaker 02:
Thank you very much.

[00:28:25] Speaker 00:
Okay.

[00:28:26] Speaker 00:
Thank you, Ms.

[00:28:27] Speaker 00:
Byers.

[00:28:27] Speaker 00:
Mr. Friedman, your rebuttal time.

[00:28:30] Speaker 03:
Thank you, Your Honor.

[00:28:31] Speaker 03:
I'll be brief.

[00:28:33] Speaker 03:
I do want to focus on the Coors case, the brew pub aspect of it.

[00:28:40] Speaker 03:
To be sure, it's not a requirement that for there to be something more with a beer registration, you know, the registration has to be a brew pub.

[00:28:49] Speaker 03:
But it is very difficult to reconcile

[00:28:53] Speaker 03:
appellee's position that merely having an active bar is that something more the Coors Court contemplated.

[00:29:01] Speaker 03:
The idea that the Coors Court would suggest, had it been a brew pub which brews its own beer and sells it at a restaurant, or just sells some Budweiser as if those things are equivalent, I don't think those are reconcilable.

[00:29:14] Speaker 03:
That it has to be something more akin to a brew pub.

[00:29:16] Speaker 03:
It doesn't have to be a brew pub.

[00:29:18] Speaker 03:
And I would give an example, the towel licensing case.

[00:29:22] Speaker 03:
I think the board

[00:29:23] Speaker 03:
correctly found something more in that case, and it wasn't because the nightclub distilled their own vodka.

[00:29:29] Speaker 03:
It had a litany of other facts that did demonstrate something more, like the vodka formative names they would use for some of their drinks.

[00:29:37] Speaker 03:
The fact that the applicant there had tried to sell the vodka brand to the nightclub and upon failing to do so, registered it, then tried to sell the registration to them.

[00:29:49] Speaker 03:
Clearly, those types of facts can establish something more and are consistent with Coors.

[00:29:53] Speaker 03:
But it's not reconcilable, of course, to suggest that it's a brew pub or just a bar.

[00:29:59] Speaker 03:
A brew pub and a bar are not analogous.

[00:30:03] Speaker 03:
And in fact, we see that in the In re Accelerate case, which Appelli cited, where it says, quote, by analogy, a coffee house is too coffee as a brew pub is too beer.

[00:30:16] Speaker 03:
So the In re Accelerate understands and is using this idea that a coffee house is like a brew pub.

[00:30:23] Speaker 03:
Not like any old place you can get a cup of coffee.

[00:30:27] Speaker 03:
And finally, I'd like to address the issue of the tap room.

[00:30:32] Speaker 03:
I believe it's argued that a tap room is a bar.

[00:30:34] Speaker 03:
I don't believe that's an accurate way to state it.

[00:30:37] Speaker 03:
The tap room at Brothers Craft Brewing is a place you can taste the beer they make on premises and only that beer.

[00:30:45] Speaker 03:
You can't get a Budweiser, you can't get a Miller Lite, you can't get a Coors.

[00:30:48] Speaker 03:
It is not a bar in the sense that appellees, bar services,

[00:30:53] Speaker 03:
on the menu only have Third Party, only have Budweiser, only have Coors, only have Miller.

[00:30:58] Speaker 03:
The idea that somebody who is at Appellant's Brewery would be confused as to the source of the beer they're being served in that tap room with a restaurant, a bar and grill, I think is untenable.

[00:31:16] Speaker 03:
So unless the court has any other questions, I appreciate the court's time this morning.

[00:31:21] Speaker 00:
Okay, any more questions for counsel?

[00:31:22] Speaker 00:
Thank you both.

[00:31:24] Speaker 00:
The case is taken under submission and that concludes this panel's argued cases.

[00:31:34] Speaker 03:
The honorable court is adjourned until tomorrow morning at 10 a.m.