Federal Circuit Finds Beer Trademark Application Nothing but "Chicken Scratch"

In yet another recent example of the need for care in establishing a full record when appealing the denial of a trademark application, on April 14, 2025, the U.S. Court of Appeals for the Federal Circuit upheld the denial of an application for CHICKEN SCRATCH for beer due to a prior registration for CHICKEN SCRATCH for restaurant services. In re: R.S. Lipman Brewing Company, No. 2023-2131 (Fed. Cir. Apr. 14, 2025).

Some 20 years ago, the mark BLUE MOON for beer was allowed to register despite a prior registration for BLUE MOON & Design for restaurant services. In that case, Coors submitted evidence showing that only 1,450 out of 815,000 restaurants in the U.S. were brewpubs or microbreweries. The Federal Circuit held in 2003 that this was a “tiny percentage” and that the degree of overlap was “de minimus.”

Fast forward to today, where the applicant submitted evidence that there are 7,480 small and independent breweries in the U.S., but did not submit evidence putting that number in context to the current total number of restaurants. The court “declined the applicant’s invitation” to accept as evidence the total number of restaurants presented in the BLUE MOON case. It also noted that there are currently 21 active trademark registrations identifying both beer and restaurant services, and 18 websites of record of third-party restaurants that serve their own beer under the same trademark as their restaurant. The court summarized all this as “substantial evidence” supporting the Trademark Office’s conclusion that the parties’ goods and services were related.

The court also found unavailing the applicant’s attempts to distinguish the commercial impression of the parties’ marks. First, the applicant argued that the specimen of use submitted with its application showed chickens “pecking at the ground” and thereby “played on the ingredients used to brew [the applicant’s] pilsner beer – corn, barley, and grains.” But the court noted that the “correct inquiry” is a comparison of the marks in the parties’ trademark filings, and there was no evidence that the mark CHICKEN SCRATCH by itself brings chicken feed to consumers’ minds. Likewise, the court dismissed the applicant’s argument that the registrant’s menu emphasizing that its chicken was “made from scratch” was evidence that CHICKEN SCRATCH by itself brings chicken made from scratch to consumers’ minds. Thus, the court treated the sight, sound, and commercial impression of the parties’ CHICKEN SCRATCH marks as identical.

Takeaway

Though trademark owners may often want to register their marks for chicken scratch, establishing a proper record arguing against an examiner’s refusal is not something that can necessarily be done on the “cheep.” Making the effort to submit sufficient and persuasive evidence is a crucial step, and taking shortcuts often results in denial of the application.