Wednesday, October 07, 2009

Precedential No. 39: TTAB Reverses 2(d) Refusal of "VOLTA" for Caffeine-Laced Vodka

Reversing a Section 2(d) refusal, the TTAB found the standard character mark VOLTA for "energy vodka infused with caffeine" not likely to cause confusion with the registered mark TERZA VOLTA & Design (shown below) for "sparkling fruit wine; sparkling grape wine; sparkling wine; wines." The Board concluded that the marks are dissimilar in appearance, sound, connotation, and commercial impression, and it ruled that the Examining Attorney had failed to establish that the goods are related. In re White Rock Distilleries, Inc., 92 USPQ2d 12982 (TTAB 2009) [precedential].

The Marks: The Board found that term TERZA "clearly dominates over the term VOLTA in the registered mark." Moreover, although the Board must consider all reasonable manners of display of Applicant's VOLTA mark, it is "not reasonable to assume that [the] VOLTA mark would be presented with the design element appearing in registrant's mark."

As to connotation, the Board found that "neither mark has any meaning as applied to the respective goods." While VOLTA may have some suggestive meaning with regard to Applicant's goods [a play on the word "volt," suggesting a "rush" from the caffeine in Applicant's vodka], it has no such meaning for wines. [Even sparkling wines? -ed..

The Goods: Noting that there is no per se rule that all alcoholic beverages are related for 2(d) purposes, the Board found that the Examining Attorney had failed to establish the relatedness of the involved goods: "There is no evidence that vodka, much less applicant's specific type of vodka, and wine emanate from a single source under a single mark."

The Board concluded that, although "the respective goods travel in the same channels of trade to the same class of purchasers, confusion is unlikely because the marks are too dissimilar and the goods have not been shown to be related."

TTABlog comment: Or course, vodka and wine are often found to be related goods, when appropriate and sufficient evidence is of record. For example, see this case, and this one.

I wonder why this decision was deemed precedential? Perhaps because of the discussion regarding the marks. Or maybe its the other part of the decision, which demonstrates that the Board demands proper record evidence even when the supposed conclusion (that vodka and wine are related) seems pre-ordained.

Text Copyright John L. Welch 2009.


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