Red Bull GmbH opposed an application to register the mark PINK COW & Design (shown first below) for “Beers; mineral and aerated waters; soft drinks; smoothies; vegetable juice; fruit drinks and fruit juices; concentrates for making fruit drinks; syrups for making non-alcoholic beverages; excluding energy drinks,” alleging a likelihood of confusion with its registered mark RED BULL & Design (second below) for “soft drinks; and sports drinks.” The goods overlap (“soft drinks”), but what about the marks? Are they confusable? How do you think this came out? Red Bull GmbH v. Morganti Flavio Innovaciones Gastronomicas, S.L., Opposition No. 91223317 (January 18, 2019) [not precedential] (Opinion by Judge Susan J. Hightower).

du Pont factors 2, 3, and 4: Because the goods are identical in part, the Board presumed that those goods move in the same channels of trade to the same classes of consumers. These factors “weigh heavily” in opposer’s favor. Moreover, because the involved goods are relatively inexpensive, “the risk of likelihood of confusion is increased because purchasers of such products are held to a lesser standard of purchasing care.”

Strength of Opposer’s Mark: The Board found Red Bull’s mark to be inherently distinctive. As to commercial strength, Red Bull claimed that its mark(s) are famous. It provided “significant evidence of fame” (all under seal). Although Red Bull’s evidence had some shortcomings, it “easily supports a finding that Opposer’s mark is famous on the spectrum employed” in the du Pont analysis. This fifth du Pont factor heavily favored opposer. [Note, although this evidence of fame related to “energy drinks,” which are expressly excluded from applicant’s identification of goods, the evidence was pertinent because the Board found that energy drinks are “soft drinks.” – ed.].

Similarity of the Marks: The Board found some similarity between the marks in sound and appearance, and “strong similarity” in connotation and overall commercial impression. “The verbal portion of each mark totals seven letters and comprises two short, one-syllable words denoting a color followed by a term for a bovine.”

As the connotation, the Board observed that “pink is a lighter shade of red.” Furthermore, “‘Bull’ is defined as a ‘male bovine; especially: an adult uncastrated make domestic bovine,’ while definitions of ‘cow’ included both ‘the mature female of cattle’ and ‘a domestic bovine animal regardless of sex or age.'”

Thus, “bull” and “cow” can mean male and female bovines, respectively. But in common vernacular, a “bull” also can be a “cow,” that is, “a domestic bovine animal regardless of sex or age.” Per the record, therefore, consumers can interpret BULL and COW either as designating bovines of the opposite sex or as synonyms.

The fact that the involved marks each incorporates bovine imagery increases their similarity. “Indeed, consumers are likely to construe Applicant’s mark as a feminized version of Opposer’s mark.”

The Board therefore found that the first du Pont factor favors a finding of likely confusion.

Conclusion: Noting that fame plays a dominant role in the du Pontanalysis, and keeping in mind that any doubts must be resolved against the newcomer, the Board found confusion likely and it sustained the opposition. The Board declined to rule on Red Bull’s dilution and false association claims.

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TTABlog comment: What do you think? Please avoid any barnyard epithets.

Text Copyright John L. Welch 2019.