Last year, in the TIME TRAVELER BLONDE case (TTABlogged here), the Board rejected a consent agreement while affirming a Section 2(d) refusal of that mark in view of the registered mark TIME TRAVELER, both marks for beer. Here, the Board did it again with two beer marks. It upheld a Section 2(d) refusal of 8-Bit Aleworks, in standard character form, finding it likely to cause confusion with the registered mark 8 bit Brewing Company, also in standard character form [BREWING COMPANY disclaimed]. Applicant submitted a consent agreement entered into with registrant, but the Board found the agreement to be ambiguous and inadequate to overcome the other du Pont factors pointing to a likelihood of confusion. In re 8-Brewing LLC, Serial No. 86760527 (October 30, 2017) [not precedential] (Opinion by Judge Thomas W. Wellington).

The Board found the involved marks to be “extremely similar,” and the goods are identical. The focus of attention was on the tenth du Pont factor, the market interface between applicant and registrant, including the proposed consent agreement.

Among the factors to be considered when assessing a consent agreement are the following:

(1) Whether the consent shows an agreement between both parties;
(2) Whether the agreement includes a clear indication that the goods and/or services travel in separate trade channels;
(3) Whether the parties agree to restrict their fields of use;
(4) Whether the parties will make efforts to prevent confusion, and cooperate and take steps to avoid any confusion that may arise in the future; and
(5) Whether the marks have been used for a period of time without evidence of actual confusion

The Board noted that there is no per se rule that a consent will always tip the balance in favor of a finding of no likelihood of confusion. The contents of each agreement must be examined.

The Board found that the agreement at hand “does little to alleviate the concern of likelihood of confusion.” The applied-for mark is in standard characters, but the exhibit to the agreement depicts the composite mark shown above. Many of the terms of the agreement relate to the marks shown in the exhibit and thus it is unclear whether registrant is consenting only to the coexistence of applicant’s design mark in Exhibit A or the standard character mark.

The period of coexistence without confusion has been very short: barely five months, a length of time “hardly indicative that confusion is unlikely.” The agreement also fails to illustrate how the trade channels differ and how the parties will restrict their fields of use. Consumers will exercise only ordinary care in their decisions to purchase beer, and there are no provisions to diminish the likelihood of confusion for these consumers.

The parties agree to use their marks in “commercially distinct product packaging that features highly dissimilar hyphenation, capitalization, formats, color schemes, and design element,” but there are no examples of this distinct packaging. Thus the Board cannot gauge how effective the packaging design would be in diminishing the likelihood of confusion.

Finally, the parties have agreed to limit their use of their marks to, respectively, California and Arizona, but the agreement is silent as to other states. Moreover, applicant is not seeking a concurrent use registration (with a corresponding restriction in the cited registration), but rather a nationwide registration. This geographic restriction would not be reflected in a registration that would issue from the involved application.

The Board concluded that this tenth du Pont factor does not weigh in favor of lessening the likelihood of confusion, and accordingly it deemed the factor neutral.

In view of the identity of the goods and their trade channels and the overall similarity in the marks, the Board concluded that confusion is likely. “Registrant’s consent is ambiguous and outweighed by several other relevantdu Pont factors. In other words, the shortcomings in the consent agreement are such that consumer confusion remains likely.”

And so the Board affirmed the refusal.