In Sazerac Brands, LLC v. Buffalo City Distillery, LLC, Cancellation No. 92079064 (TTAB July 31, 2025), the TTAB found that “alcoholic beverages except beers; distilled spirits” for the BUFFALO CITY trademark registration that was the subject to cancellation was broad enough to encompass “bourbon” which was identified as the goods for the asserted BUFFALO TRACE trademark registration. “If an application or registration describes goods or services broadly, and there is no limitation as to their nature, it is presumed that the ‘registration encompasses all goods or services of the type described.'” Monster Energy Co. v. Lo, Opp. No. 91225050, 2023 WL 417620, at *7 (TTAB 2023). Thus, the TTAB held that these goods were legally identical, in part. And because both registrations did not include any restrictions on trade channels or consumers, the TTAB presumed that the parties' legally-identical goods are sold through the same channels of trade to the same consumers. Cai v. Diamond Hong, Inc., 901 F.3d 1367, 1372 (Fed. Cir. 2018) (“With respect to similarity of the established trade channels through which the goods reach customers, the TTAB properly followed our case law and ‘presume[d] that the identical goods move in the same channels of trade and are available to the same classes of customers for such goods.”); Stone Lion Cap. Partners, L.P. v. Lion Cap. LLP, 746 F.3d 1317, 1323 (Fed. Cir. 2014) (presuming that the trade channels and consumers were the same with respect to the parties' legally identical services); see also Sock It To Me, Inc. v. Fan, Opp. No. 91230554, 2020 WL 3027605, *10 (TTAB 2020) (where there are no limitations in the identification, goods encompass “all goods of the type identified, without limitation as to their nature or price”). Also, consumer sophistication is based on identified goods and services not on current use, and of the least sophisticated purchasers of those goods and services. Stone Lion, 746 F.3d at 1325. 

With respect to purchasing conditions, purchaser sophistication and care in making a purchase may tend to minimize likelihood of confusion while impulse purchases of inexpensive items may tend to have the opposite effect. Palm Bay Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 1376 (Fed. Cir. 2005). Because the retail price for bottles of whisky was in the range between $25 and $60, the TTAB held that find that the least sophisticated purchasers of the goods identified in the registrations "are ordinary consumers purchasing on impulse." 

With respect to the commerical strength of the asserted BUFFALO TRACE mark, the TTAB noted there were considerable advertising expenditures and sales revenue, advertising through a number of different media, as well as experiential marketing, and the unsolicited and third-party coverage of the BUFFALO TRACE brand, which, taken as a whole, support finding that the BUFFALO TRACE mark is well-known among consumers for bourbon. Thus, the TTAB concluded that the BUFFALO TRACE mark for bourbon falls toward the “stronger” end of the commercial strength spectrum. Joseph Phelps Vineyards, LLC v. Fairmont Holdings, LLC, 857 F.3d 1323, 1325 (Fed. Cir. 2017) (In the context of a likelihood of confusion analysis, the commercial strength of a mark is not a binary factor. Rather, it “varies along a spectrum from very strong to very weak.”) (quoting Palm Bay, 396 F.3d at 1374-75).  

As for the connotation of the marks themselves, notwithstanding the difference in meaning between "trace" (as in a “path” or “minute amount”) and "city"; the TTAB found that "for some consumers, the parties' marks will evoke similar general commercial impressions of buffalo and the frontier." 

With respect to the Squirt-style lineup survey finding "a net 30.5 percent of respondents are likely to be confused and believe that Buffalo City is from the same company" as Buffalo Trace, while that style of survey was deemed appropriate, the TTAB was troubled by the leading question format of the survey questions, which likely created a demand effect and “best-fit” exercise. In particular, that “false positives” were encouraged because survey respondents were not specifically informed that it was possible none of the listed brands were related to the BUFFALO TRACE mark. Because of the flaws in the survey, it was given little weight by the TTAB.  

Ultimately, the TTAB concluded that "should the ordinary unsophisticated consumer with a fallible memory encounter the parties' similar marks in use on legally identical, in part, goods and in the same trade channels, there is a likelihood of confusion." And so the petition for cancellation of the BUFFALO CITY registration was granted.