No likelihood of confusion this time as the TTAB finds beer and wine to be unrelated goods.
In Justin Vineyards & Winery LLC v. Crooked Stave, LLC, Applicant Crooked Stave, LLC sought registration of the word mark HOP SAVANT, with “HOP” disclaimed, for “beer” in International Class 32. Opposer Justin Vineyards and Winery opposed the application based on a likelihood of confusion with its preexisting registration of the mark SAVANT for wine in International Class 32.
The Board looked at the relevant Dupont factors for likelihood of confusion (13 in total), starting with the strength of Opposer’s mark. It concluded that based on the record, Opposer’s SAVANT mark had both conceptual and commercial strength. Accordingly, it concluded that Opposer’s mark was inherently distinctive, having achieved at least some marketplace recognition during its nearly twelve years of use. With regard to the similarity of the marks, the Board also opined that both parties’ mark included the identical “savant” component, with Applicant’s “hop” portion of its compound mark disclaimed. Therefore, for comparison purposes, the marks were identical, making this factor weigh in Opposer’s favor.
The most interesting analysis was of the similarity of beer and wine as set forth in the parties’ respective applications. Despite that fact that beer and wine have been held to be similar goods in numerous other cases before the TTAB and the Federal Circuit, the Board reiterated that each case must be decided on its own facts and evidence. It also indicated that there is no per se rule regarding the similarity of alcoholic beverages. Here, the Board concluded that Opposer did not introduce enough evidence to establish that beer and wine are sufficiently related that consumers expect them to emanate from the same source under the same mark.
The Federal Circuit has ruled that even a single Dupont factor may found to be dispositive in a likelihood of confusion analysis. Here, the Board found that since the Opposer could not establish that the parties’ respective goods (i.e., beer and wine) were related for likelihood of confusion purposes, then the opposition should be dismissed.
Editor’s Note: The burden of an Opposer to establish the relatedness of beer and wine in every single case (without much weight given to case precedent) is somewhat —well— burdensome. Would it be too much to ask that the Board take notice of the relatedness or non-relatedness of certain goods as the Trademark Office routinely does during the trademark examination process? This could be one reason why U.S. trademark opposition and cancellation proceedings are some of the most expensive in the world.