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2015 at the TTAB: Are All Alcoholic Beverages Related Goods for Trademark Purposes?

In 2015, the Trademark Trial and Appeal Board (“TTAB”) continued the trend of finding different categories of alcoholic beverages to be related goods for purposes of a Section 2(d) likelihood of confusion analysis. Although there is no per se rule that all alcoholic beverages are related goods, trademark examiners at the Patent and Trademark Office (“PTO”), the TTAB, and reviewing courts routinely find that beer, wine, spirits, and other alcoholic beverages are related goods. For the average consumer or business owner, the grouping of all alcoholic beverages together as related goods for trademark purposes makes little sense. As the TTAB has stated, “[w]hile it is clear that tequila and wine are both beverages that contain alcohol, not even an unsophisticated purchaser would mistakenly buy one expecting the other.” In re Proximo Spirits, Inc., Serial No. 85865962 (Mar. 16, 2015) (not precedential). However, the question is not whether the goods are similar or competitive, but rather the question is whether a consumer encountering the goods in the market “would mistakenly believe that they share or are affiliated with or sponsored by a common source.” Anheuser-Busch, LLC v. Innvopak Systems Pty Ltd., 115 U.S.P.Q.2d 1816 (TTAB 2015) (precedential).

Why does the TTAB frequently find, when the marks are similar, that consumers would believe alcoholic beverages of different types originate from a common source? One reason is that some manufacturers produce multiple types of alcoholic beverages and sell those beverages under the same mark. In In re Sugarlands Distilling Company, LLC, the TTAB cited five examples of wineries also engaged in distillation and the sale of spirits, as well as “internet evidence show[ing] that there are a number of combination wineries and distilleries,” and that evidence alone was sufficient for the TTAB to find that the goods, wine and spirits, were related. Serial No. 85818277 (Nov. 20, 2015) (not precedential); see also In re Sonoma Estate Vintners, LLC, Serial No. 85842056 (Jan. 9, 2015) (not precedential) (citing fifteen registrations showing that various entities registered a single mark for wine and beer). The TTAB also typically finds that alcoholic beverages are sold in the same channels of trade, such as liquor stores and restaurants, and thus that consumers will encounter multiple types of alcoholic beverages in the same stores. In re Brent Theyson, Serial No. 85663894 (Dec. 4, 2015) (not precedential); In re Millbrook Distillery, LLC, Serial Nos. 85924732 and 85954556 (Feb. 9, 2015) (not precedential). Further, the TTAB commonly finds that alcoholic beverages of all types can be found at lower price points, and thus that consumers may purchase alcohol “without exercising great care.” In re Millbrook Distillery, LLC, Serial Nos. 85924732 and 85954556; Anheuser-Busch, LLC, 115 U.S.P.Q.2d 1816. These factors all tend to lower the bar for a finding of likelihood of confusion by the PTO and TTAB.

See below for examples of cases involving the relatedness of alcoholic beverages that were considered by the TTAB in 2015:

Contrary to the above trend, the TTAB reversed a refusal to register REUBEN’S BREWS (and design) in Class 32 for beer, despite the prior registration of RUBENS (and design) in Class 33 for wine. In re Reubens Brews LLC, Serial No. 86066711 (Oct. 27, 2015) (not precedential). The TTAB found the marks to be different in appearance, meaning, and commercial impression, although they were similar in sound. Considering evidence of manufacturers producing both beer and wine, an overlap in trade channels, and similar price points, the TTAB conceded that the “record establishes that there is some degree of relationship between beer and wine.” However, the TTAB acknowledged that the PTO “has in the recent past taken inconsistent positions when it comes to likelihood of confusion between marks for beer and wine,” and cited eighteen examples of similar or identical marks registered to different owners in beer and wine. The TTAB ultimately found in favor of the applicant, and reversed the refusal to register. However, the TTAB stressed that the finding was based on the “overall differences between the marks in their entireties.”

Notwithstanding the TTAB’s reversal in the REUBEN’S BREWS case, it would be premature to conclude that the PTO or the TTAB will increasingly recognize the potential differences between types of alcohol products, so it would be wise to consider trademarks in use on beverages of all types when evaluating a trademark for use with an alcoholic beverage product.

For specific trademark guidance, contact one of the attorneys at Strike & Techel.

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