Here we go again! The Board affirmed a refusal to register the mark MASTERMIND for beer, finding confusion likely with the registered mark MASTERMIND VODKA for “spirits” [VODKA disclaimed]. Applicant Fiddlehead trotted out the usual arguments, but third-party Internet evidence convinced the Board that the goods are related. In re Fiddlehead Brewing Company, LLC, Serial No. 86924382 (August 6, 2018) [not precedential] (Opinion by Judge Linda A. Kuczma).
The Marks: Noting that VODKA is disclaimed, the Board not surprisingly found MASTERMIND to be the dominant part of the cited mark. Consumers are generally more inclined to focus on the first word in any mark. The Board concluded that the marks are similar in appearance, sound, meaning and commercial impression.
Third-Party Registrations: Fiddlehead pointed to an existing registration for THE MASTERMIND’S METHOD for distilled spirits, including vodka, asserting that if that mark can coexist with MASTERMIND VODKA for spirits, then applicant’s mark can also coexist with MASTERMIND VODKA. Not so fast, said the Board, pointing out that a single third-party registration has little probative value on the issue, particularly when there is no evidence that the third-party mark is in use on a commercial scale or that the public is familiar with it.
Fiddlehead also submitted thirteen pairs of registrations for similar marks for beer and other alcoholic goods, but again the Board gave this evidence little weight since there was no showing of actual use or consumer impact of the marks. Moreover, prior decisions and actions by other examining attorneys have little evidentiary weight and are not binding on the Board. Each case must be decided on its own facts.
The Goods: Examining Attorney Julie Thomas Veppumthara submitted excerpts from some 20 websites for businesses owning a brewery and a distillery. An electronic article reported that “beer breweries increasingly are distilling craft spirits.” [Hearsay? – ed.]. The Board concluded that beer and spirits “are produced and sold by the same entities and are commonly sold under the same marks.”
The Board noted that the CAFC and the TTAB have frequently found beer and wine and other alcoholic beverages to be related. Here, the record evidence established that the involved goods are related.
Fiddlehead asserted that the production, distribution, and sale of the involved products are highly regulated and pass through a three-tier system of delivery. Nonetheless, the Board observed, they are ultimately sold to end-consumers. Beer and spirits would be sold in some of the same trade channels to the same classes of consumers, including the general public. The third-party registration pairs submitted by Applicant Fiddlehead, to the extent considered under this du Pont factor, are outweighed by the similarity established by the examining attorney’s evidence.
Other Factors: Fiddlehead argued that the involved products are “artisanal,” one being brewed and one distilled, and are purchased by “connoisseurs” who know exactly what company has produced the chosen product. Unfortunately for Fiddlehead, there are no such restrictions in the application or cited registration. The Board must presume that the goods involve inexpensive or moderately priced beer and spirits. Moreover, even sophisticated purchasers are not immune to source confusion when similar marks are involved.
Finally, the absence of proof of actual confusion is of little probative value in an ex parte proceeding, where the registration has no chance to state its position or provide evidence. In any case, the test is likelihood of confusion, not actual confusion.
Conclusion: Finding confusion likely, the Board affirmed the refusal.
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TTABlog comment: Fiddlesticks! What is a craft brewer to do?
Text Copyright John L. Welch 2018.