Our “TTAB Test” week continues with a Section 2(d) refusal of HUSKYfor “beer, ale and lager” in view of the identical mark registered for vodka. Sure, the marks are identical, but what about the goods? Remember, there is no per se rule that all alcoholic beverages are related. I suspect you have a pretty good idea of how this came out. In re Alaskan Brewing & Bottling Co., Serial No. 87142867 (September 25, 2018) [not precedential] (Opinion by Judge Angela Lykos).

Applicant started with two strikes against it. Because the marks are identical, a lesser degree of similarity between the goods is necessary to support a finding of likely confusion. And because HUSKY is an arbitrary term in relationship to beer and vodka, the registered mark is entitled to a wider scope of protection than less distinctive marks. Not mush applicant could do about that. [pun!].

As to the goods, the Board found that the evidence reflects the trend posited by one commentator: “Historically, distilleries and breweries orbited in parallel universes, but in recent years brewers have begun pulling double duty as distillers and distillers have begun acting like brewers.” Examining Attorney Emma Sirignano submitted third-party website evidence showing that “it is not uncommon for craft brewers to distill craft spirits and offer both beer and vodka under the same house mark.” Even though this evidence involves house marks, the house marks do not identify a wide variety of goods, but only alcoholic beverages.

The Examining Attorney also supplied five use-based third-party registrations for marks covering beer and vodka. The Board concluded from the evidence that “a commercial relationship exists between craft beer and U.S. distilled craft vodka, alcoholic beverages falling within the ambit of ‘beer’ and ‘vodka’ as identified in the involved application and cited registration. U.S. consumers are likely to be cognizant of the fact that craft brewers have expanded into the market of distilling spirits such as vodka.”

Applicant feebly argued that most states require that beer and vodka be sold in non-overlapping trade channels to different consumers. However, the Board pointed out, there are no such limitations in the subject application or the cited registration. Moreover, it is common knowledge that beer and vodka may be purchased in liquor stores. These goods are sold to the general public, and not all consumers (even if sober) are sophisticated or particularly careful in their purchasing decisions.

The Board concluded that confusion is likely and it therefore affirmed the Section 2(d) refusal.

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TTABlog comment: You knew this was coming, didn’t you?

Text Copyright John L. Welch 2018.