Beer and Restaurants Can Be Confused...

On April 14, 2025, the U.S. Court of Appeals for the Federal Circuit issued a cautionary reminder to trademark applicants: when it comes to appealing a refusal, an incomplete evidentiary record can sink your case. In In re: R.S. Lipman Brewing Company, No. 2023-2131, the court upheld the U.S. Patent and Trademark Office’s (USPTO) refusal to register the mark CHICKEN SCRATCH for beer. The reason? An existing registration for CHICKEN SCRATCH used in connection with restaurant services.

At first glance, this outcome might seem surprising. After all, beer and restaurant services are distinct categories. Yet, trademark law often turns on the likelihood of consumer confusion between goods and services that may seem unrelated at first. This case exemplifies how courts evaluate such confusion, especially when the mark itself—here, CHICKEN SCRATCH—is identical.

For some historical context, compare this decision to the 2003 ruling involving BLUE MOON for beer. At that time, Coors successfully registered BLUE MOON for its beer despite an existing registration for BLUE MOON & Design for restaurant services. The key difference was the evidence presented. Coors demonstrated that only 1,450 out of approximately 815,000 restaurants nationwide were brewpubs or microbreweries—a fraction the court deemed “de minimis.” This minimized the likelihood of overlap between the beer and restaurant industries for that mark.

In contrast, R.S. Lipman Brewing Company’s argument fell short. The applicant provided data showing that there are 7,480 small and independent breweries in the United States but failed to contextualize this figure against the total number of restaurants currently operating. This omission proved critical. The court explicitly declined to rely on the restaurant data from the earlier BLUE MOON case, emphasizing that up-to-date, case-specific evidence is necessary. Furthermore, the court pointed to the existence of 21 active trademark registrations covering both beer and restaurant services, as well as 18 restaurant websites where house-brewed beer shares the same name as the establishment. Together, these facts amounted to what the court called “substantial evidence” supporting the USPTO’s finding that beer and restaurant services are related for trademark purposes.

The applicant’s efforts to distinguish the commercial impression of the marks also fell flat. R.S. Lipman argued that its beer label, depicting chickens pecking at grains, played on the ingredients in its pilsner—corn, barley, and other grains—and that this imagery differentiated its mark from the restaurant’s use. However, the court reaffirmed that trademark comparisons focus on the marks themselves—not their associated imagery or marketing context—unless that context directly shapes consumer perception. Similarly, the applicant claimed that the restaurant’s focus on chicken dishes “made from scratch” created a separate impression for the CHICKEN SCRATCH mark. The court dismissed this too, finding no evidence that consumers would independently associate CHICKEN SCRATCH with either concept. As such, the court treated the marks as identical in sight, sound, and commercial impression.

Key Takeaways for Trademark Applicants
This case underscores the importance of building a robust factual record when responding to a USPTO refusal or appealing a denial. Simply relying on industry trends or anecdotal evidence is rarely sufficient. Instead, applicants must offer concrete, current data that directly supports their position—whether it relates to the market overlap between goods and services or the distinctiveness of their mark’s commercial impression.

Additionally, this decision reinforces a longstanding principle in trademark law: identical marks used in related industries—even if not directly competing—can create a likelihood of confusion. The increasing convergence of services, such as restaurants brewing and selling their own beer, only heightens this risk.

In trademark registration, as this case shows, the stakes are high and shortcuts are costly. Establishing a clear, persuasive record from the outset remains essential for securing protection. Taking the time to gather and present strong evidence is not just prudent—it is often the decisive factor between registration and refusal.