IPfever

Non-precedential opinion of TTAB for proceeding No. 92080766 in 2025

A copy of the opinion (downloadable at https://ttab-reading-room.uspto.gov) should be appended to the motion or brief. TBMP §101.03(a)(2).

(1) Holding The Board denied the Petition to Cancel the registration for the mark SEXTO.

(2) Procedural History The Petitioner, Proximo Spirits, Inc., sought to cancel the registration for the standard character mark SEXTO for “alcoholic beverages, except beer; alcoholic beverages, namely, distilled agave liquor” in International Class 33.

The Petitioner’s claim was based on its own registered mark, THE SEXTON (in standard characters), for “whiskey” in International Class 33.

(4) Issues The central issue was whether there was a likelihood of confusion between Petitioner’s mark THE SEXTON and Respondent’s mark SEXTO, as used on their respective alcoholic beverages.

(5) Rationales The TTAB denied the petition to cancel based on

• Goods, Channels of Trade, and Consumers: The Board found the goods to be legally identical because the identification “alcoholic beverages, except beer” includes whiskey. The Board also found that distilled agave liquor and whiskey are closely related, as evidenced by third-party registrations and distillery websites offering both under the same marks. Because the goods are identical or closely related, the Board presumed they are sold in the same trade channels and offered to the same classes of consumers. These factors weighed heavily in favor of a likelihood of confusion.
• Strength of Petitioner’s Mark: The Board found Petitioner’s mark, THE SEXTON, to be both conceptually and commercially strong. The term “sexton” is arbitrary in connection with whiskey, giving it conceptual strength. The evidence also showed commercial strength through significant sales, promotional expenditures, industry awards, and a co-branding partnership with the television show The Walking Dead. This factor weighed in favor of a likelihood of confusion.
• Dissimilarity of the Marks: The Board concluded that the marks are dissimilar in their overall commercial impression, particularly in their connotation and meaning.
  • Connotation and Meaning: Petitioner’s mark, THE SEXTON, has a specific meaning in English, referring to a church officer or grave digger. This connotation is reinforced by its promotional activities and the word “THE,” which suggests a specific individual. Respondent’s mark, SEXTO, has no understood meaning in English, and in Spanish, it means “sixth”.
  • Appearance: Although SEXTO is only one letter away from SEXTON, the omission of the “N” is significant because consumers are unlikely to perceive it as a misspelling of SEXTON.
  • Sound: The Board found it unlikely that the marks would be pronounced in a similar way.
• Dissimilarity outweighed other factors: The Board held that the dissimilarity of the marks outweighed the similarities of the goods, trade channels, and the strength of Petitioner’s mark. The differences were “significant” and “substantial,” justifying a conclusion that confusion is unlikely. The Petition to Cancel was therefore denied.