Federal Circuit Affirms Refusal of CHICKEN SCRATCH Mark for Beer

On April 14, 2025, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision by the Trademark Trial and Appeal Board (TTAB) refusing registration of R.S. Lipman Brewing Company, LLC’s (Lipman) proposed CHICKEN SCRATCH trademark for beer. The court agreed with the Board that a likelihood of confusion exists with an already-registered CHICKEN SCRATCH mark for restaurant services.

Lipman filed its application to register CHICKEN SCRATCH in November 2018, seeking protection for use of the mark in connection with beer. In 2020, the U.S. Patent and Trademark Office (USPTO) examining attorney issued a final refusal under Section 2(d) of the Trademark Act, finding a likelihood of confusion with the existing registration for CHICKEN SCRATCH restaurant services. Lipman requested reconsideration, which was denied, and then appealed to the TTAB. The Board suspended the appeal and remanded for the examining attorney to reconsider in view of Lipman’s arguments, but after further examination, the refusal was maintained. In May 2023, the Board affirmed the refusal, and Lipman timely appealed to the Federal Circuit.

On appeal, Lipman first argued that the cited mark was conceptually weak and entitled to only a limited scope of protection. Lipman pointed to the suggestive nature of the CHICKEN SCRATCH mark, asserting that the registrant’s restaurant featured chicken dishes “made from scratch,” and contended that coexistence with a separate registration for distilled spirits under the same name further demonstrated weakness. The Board rejected these arguments, finding that dictionary definitions of “chicken scratch” as meaning “bad handwriting” weighed against treating the mark as suggestive in the restaurant context. The Federal Circuit agreed, explaining that the dictionary definitions provided substantial evidence to support the Board’s conclusion. The court also noted that to the extent Lipman disagreed with how the Board weighed the evidence, such disagreements are not grounds for reversal, as appellate review does not reweigh evidence.

Lipman next contended that the Board failed to properly consider the commercial impressions created by the marks in their respective contexts. Lipman argued that, in connection with restaurant services, CHICKEN SCRATCH would evoke homemade chicken dishes, while in connection with beer, it would suggest the grains and ingredients consumed by chickens. Lipman pointed to its specimen featuring a chicken graphic pecking at the ground to support this distinction. The Federal Circuit disagreed, explaining that the comparison must be between the marks themselves as applied for and registered, without reference to additional graphics or other contextual elements. The court emphasized that Lipman had not submitted evidence showing that consumers would associate CHICKEN SCRATCH for beer with chicken feed. Because both marks related to “chicken” imagery and conveyed similar impressions, and because the words were identical, the court held that substantial evidence supported the Board’s finding that the marks created similar commercial impressions.

The court also rejected Lipman’s argument that the Board improperly relied on dictionary definitions it introduced sua sponte. Lipman had failed to provide any meaningful argument or precedent supporting this contention, and the court deemed the issue forfeited on appeal.

Turning to the relatedness of beer and restaurant services, the CAFC upheld the Board’s application of the “something more” standard required by precedent. Under In Re Coors Brewing Company, 343 F.3d 1340 (Fed. Cir. 2003), evidence that restaurants serve beer is insufficient standing alone to establish relatedness; something more is necessary to show that consumers would expect a common source. In Coors, the Board’s finding of relatedness was not supported by substantial evidence because only a tiny percentage of restaurants also operated as brewpubs. In contrast, in Lipman’s case, the record included 21 active third-party registrations covering both beer and restaurant services, 18 examples of restaurants brewing and selling their own beer under the same mark, and articles and books discussing the growth of brewpubs as a recognized category. The Federal Circuit noted that, unlike in Coors, Lipman had not introduced comparative industry data to counter the examining attorney’s evidence. Accordingly, the Board’s finding that beer and restaurant services are sufficiently related was supported by substantial evidence.

The court further noted that Lipman’s submission showing the number of small breweries operating in the United States did not provide the necessary context to show the rarity of restaurant-brewery combinations, and the absence of comparative data distinguished the case from Coors.

Having found no error in the Board’s analysis of the DuPont factors at issue—similarity of the marks and relatedness of the goods—the Federal Circuit affirmed the Board’s determination that confusion was likely and the refusal was upheld.

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