although the Board had before it a few registrations for both restaurant services and beer, the very small number of such dual use registrations does nothing to counter Coors’ showing that only a very small percentage of restaurants actually brew their own beer or sell house brands of beer; instead, the small number of such registrations suggests that it is quite uncommon for restaurants and beer to share the same trademark. In re Coors, 68 USPQ2d at 1063064.
Applicant submitted data from the National Restaurant Association indicating that in 2018 there were more than one million restaurants operating in the United States. Data from the Brewers Association website indicated that 2,594 brewpub sand 4,522 microbreweries were operating in the United States in 2018.
The Board sided with the applicant, ruling that the USPTO’s conclusion regarding the relatedness of the involved goods and services was not supported by substantial evidence. First, only 6 of the 11 establishments cited by the USPTO provided beer and dining services under the same mark, and those 6 appear to be brewpubs. According to applicant’s evidence, even if all the brewpubs and microbreweries featured restaurant services, those establishments would amount only “approximately .007%” (sic) [[actually, I think 7,000 out of one million is 0.7% – ed.] of the total number of restaurants in the U.S. “The evidence suggest that it is not common for restaurants and beer to share the same trademark.”
The Board noted that the USPTO did not submit any evidence from trade publications or articles to show that restaurants commonly serve beer and offer their services under the same mark. Nor was there evidence that applicant’s beer is offered at registrant’s restaurants.
The Board therefore reversed the refusal to register.
[T]he evidence of record is insufficient to satisfy the “something more” requirement under In re Coors so as to establish that Applicant’s beer and Registrant’s restaurant services, as well as the other services recited in the cited registration,are sufficiently related for likelihood of confusion purposes. This is a critical shortcoming in the evidence, because even identical marks will not cause confusion unless there is at least some degree of relatedness of the goods and services at issue.
Read comments and post your comment here.
PS: The Board corrected its calculation error here: http://ttabvue.uspto.gov/ttabvue/ttabvue-87403137-EXA-8.pdf.
TTABlogger comment: If I ever go to a restaurant again, and I see beer offered under the same mark as the restaurant’s mark, I would think, what the heck is that?
Text Copyright John L. Welch 2020.