Test Your TTAB Judge-Ability: Are Prepared Alcoholic Cocktails Related to Beer?

The PTO refused registration of the mark BATTLEFIELD BLUE 'RITA for "prepared alcoholic cocktail[s]" [BLUE disclaimed], finding the mark likely to cause confusion with the registered mark BATTLEFIELD for "beer." The Board deemed the marks to be "highly similar," since applicant "has essentially appropriated the registrant's entire arbitrary mark." But what about the goods? Are they sufficiently related for Section 2(d) purposes? In re Genghis Grill Franchise Concepts, LP, Serial No. 85372951 (July 2, 2013) [not precedential].

The Board noted that on many occasions different types of alcoholic beverages have been found by its reviewing court and by the Board to be sufficiently related in a likelihood of confusion analysis, because the beverages may share common uses, channels of trade, and consumers. For example: beer and ale related to tequila; malt liquor related to tequila; beer to wine; whiskey to gin and vodka; cognac to malt liquor, beer and ale; distilled spirits to wine; wine to whiskey; and Scotch whisky to rum.

Examining Attorney Linda E. Blohm submitted evidence that beer and alcoholic cocktails may be offered in the same channels of trade to the same customers: specifically, she provided retail store advertisements and restaurant menus where beer and alcoholic cocktails appear alongside each other. News articles, advertisements, and recipes demonstrated that beer may be used as an ingredient of alcoholic cocktails.

The Board disregarded applicant's arguments that its prepared cocktails will be served only in restaurants and that registrant's beer will be offered at registrant's brewery, pubs, and the like, since there are no such restrictions on channels of trade in the application and cited registration.

And so the Board affirmed the refusal.

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TTABlog note: Remember, there is no per se rule that ....

Text Copyright John L. Welch 2013.

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