Wednesday, October 29, 2008

Fame of "MICHELOB" Mark and Survey Evidence Lead Board to Sustain 2(d) Opposition to "MAMBO MICHELADA" for Beer

The fame of the MICHELOB mark and Opposer's survey results led the Board to sustain Anheuser-Busch's Section 2(d) opposition to registration of the mark MAMBO MICHELADA for beer and syrup for making beer beverages. Anheuser-Busch, Incorporated v. Mambo Seafood #1, Inc., Opposition No. 91160250 (September 22, 2008) [not precedential].

The goods involved are in part identical and, because neither the application nor Opposer's registrations have any limitations on channels of trade, the Board presumed that the goods travel in the same normal channels to the same classes of purchasers. Consumers would be expected to exercise only ordinary care in purchasing these relatively inexpensive goods. Therefore these du Pont factors weigh "heavily" in Opposer's favor.

Since 1993, Anheuser-Busch has sold more than 16 billion dollars worth of beer under its MICHELOB marks in this country. MICHELOB brand beers have ranked in the top 15 beers in sales since 1977. Opposer has spent more than $800 million to promote its MICHELOB beers since 1993. And the MICHELOB mark enjoys a 96% brand awareness among adults. Consequently, the Board found, and Applicant did not dispute, that the mark MICHELOB is famous for beer. Again, this factor weighs heavily in Opposer's favor, particularly since fame plays a "dominant role" in the likelihood of confusion analysis.

Turning to the marks, the Board first noted, for the zillionth time, that when the goods are identical, the degree of similarity in the marks necessary to support a finding of likely confusion decreases. Moreover, "as the fame of a mark increases, the degree of similarity between the marks necessary to support a conclusion of likely confusion declines." [TTABlog question: How low can it go?]

Comparing the marks MICHELOB and MAMBO MICHELADA, the Board found, contrary to the parties' respective linguistics experts, that neither MAMBO nor MICHELADA is dominant in Applicant's mark. The experts disagreed as to how the marks would be pronounced, but the Board pointed out once again that "there is no 'correct' pronunciation of a trademark because it is impossible to predict how the public will pronounce a particular mark." [TTABlog query: how about the pronunciations of CAT and KAT, or DOG and DAWG?].

The Board did agree with Applicant, however, that the marks have different meanings: MICHELOB is a coined term, while MICHELADA in Spanish means "my freezing one" or "my frosty one."

Nonetheless, the Board concluded that the marks "share sufficient similarities to engender similar overall commercial impressions," and that the "similarities between the marks in appearance, sound, and commercial impression outweigh the differences." [ TTABlog observation: hard to swallow that one.]

The Board then turned to Anheuser-Busch's survey evidence: a mall intercept survey employing the Ever-Ready format [wherein the survey asked "Who do you think puts out the lamp shown her?" and "What makes you think so?] Its survey expert concluded that 43% of "purchasers and likely purchasers of beer mistakenly believe that MAMBO MICHELADA beer is made, put out or approved or sponsored by Anheuser-Busch because of the MAMBO MICHELADA name." The Board found the survey reliable, and that the level of confusion "is significant and certainly weighs in opposer's favor." [TTABlog comment: game, set, and match.]

Finally, the Board noted but discounted the lack of proof of any actual confusion, because most consumers, even in Houston (where Applicant's restaurants are located), have not been exposed to Applicant's mark.

Weighing all the relevant du Pont factors, the Board sustained the opposition.

Text Copyright John L. Welch 2008.


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