Relatedness of Goods and Sevices

While asserting a likelihood of confusion rejection, the examining attorney will often categorize the described goods and/or services under a broadly defined term that also encompasses the goods and/or services described in the cited registration. For example, "alcoholic beverages" is such a broad category.

In a case involving Cobblestone Brands Ltd's trademark application for a gin product, the Trademark Trial and Appeal Board (Board) addressed whether beer and gin are related goods to determine the likelihood of confusion under Section 2(d) of the Trademark Act. In re Cobblestone Brands Ltd, Serial No. 97453097 (December 19, 2024) [not precedential] (Opinion by Judge Lawrence T. Stanley, Jr.).

Comparing the Marks

Cobblestone Brands sought to register the trademark shown on the left for a gin product. However, the U.S. Patent and Trademark Office (USPTO) refused the registration, citing that the mark would likely cause confusion with existing trademarks on the right, which Four Corners Brewing Company owns for beer products.

The Board found the marks to be more similar than dissimilar in appearance, sound, meaning, and commercial impression, primarily due to the identical dominant phrase, "OUR CORNERS," present in both marks.

Relating the Goods

The Board's primary issue was determining whether beer and gin are related enough that consumers would believe they come from the same source when sold under similar marks.

The Examining Attorney argued that beer and gin are related for two reasons:

1. Some companies produce and market both beer and gin under the same brand name.

2. Prior case law has recognized various alcoholic beverages as related for trademark purposes.

The Examining Attorney provided three examples of breweries that also distill gin and sell both products under the same brand. However, the TTAB found this evidence insufficient to demonstrate that consumers generally regard beer and gin as related goods.

AApplicant'sArguments

Cobblestone Brands argued that:

1. There is no per se rule that different types of alcoholic beverages are related.

2. Beer and gin are subject to different distribution channels and regulations.

3. The Examining Attorney's limited evidence (only three examples) did not demonstrate that consumers expect beer and gin to originate from the same source.

BBoard'sAnalysis

The TTAB reviewed the evidence and case law and determined that:

1. Insufficient Evidence of Relatedness: The Examining AAttorney'ssubmission of only three examples of companies producing beer and gin was inadequate. Given the large number of breweries and distilleries in the U.S., three examples did not prove that beer and gin are commonly produced by the same entities or marketed together.

2. No Overlapping Trade Channels: The TTAB noted that beer and gin often follow different trade channels. For instance, beer can be sold in grocery and convenience stores, while gin is generally sold in liquor stores. The TTAB also pointed out that the regulatory framework for distributing beer and spirits differs, further supporting the lack of overlapping trade channels.

3. Purchasing Conditions: The TTAB found that beer and gin are general consumer products bought by a broad range of consumers, including both connoisseurs and ordinary consumers. The difference in price between the two products (beer being less expensive than gin) was noted. Still, the TTAB did not find sufficient evidence to suggest that consumers of either product are particularly sophisticated or discerning.

The Board concluded that the Examining Attorney failed to provide adequate evidence demonstrating that beer and gin are related goods. The second DuPont factor, which assesses the similarity of the goods, strongly favored a determination against the likelihood of confusion. Although the marks were deemed similar under the first DuPont factor, the TTAB concluded that the lack of relatedness between the goods outweighed the similarity of the marks.

Conclusion

The Board reversed the refusal to register the Cobblestone Brands' mark, concluding that beer and gin are not sufficiently related to cause consumer confusion in this particular case.

This decision highlights that there is no blanket rule stating that all alcoholic beverages are related for trademark purposes. Instead, the relatedness of goods must be established with adequate evidence on a case-by-case basis. Accordingly, in these alcoholic beverage cases, an applicant's principal hope seems to be the weakness of the Office's third-party registration and use evidence.