Monday, December 21, 2009

Finding "BELL HILL" for Wine and "BELL'S" for Beer Too Dissimilar, TTAB Dismisses 2(d) Opposition

Bell's Brewery, Inc. uncorked a loser when it opposed registration of the mark BELL HILL for packaged wine. Opposer claimed that the applied-for mark (1) would likely cause confusion with its registered mark BELL'S & Design for beer, and (2) is primarily geographically descriptive under Section 2(e)(2). Also falling flat was Opposer's assertion that (3) Applicant committed fraud when it represented to the PTO that BELL HILL has no geographic significance. Bell's Brewery, Inc. v. Bell Hill Vineyards, LLC, Opposition No. 91177980 (December 18, 2009) [not precedential].

Likelihood of Confusion: The Board found that beer and wine are "somewhat related" and that there is "at least some consumer exposure to wine and beer marketed under the same mark." However, the record did not establish that it is "common practice for these goods to emanate from the same source." The Board also found that, based on the identifications of goods in the involved application and registration, the goods would travel in the same channels of trade to the same classes of customers.

In any event, the Board found the differences in the marks to be dispositive. "[W]e read applicant's mark as a unitary phrase BELL HILL which has the connotation and commercial impression of a place." Opposer's mark, however, "evokes bells when viewed in concert with the design element or simply a last name when viewing the word element by itself." In short, it found "the overall connotation and commercial impressions quite different and sufficient to outweigh any similarities in appearance or sound based on the common element BELL.

Primarily Geographically Descriptive: The first element of a Section 2(e)(2) claim is that the mark must be the name of a place generally known to the public. If the place is so obscure or remote that purchasers would fail to recognize the term as indicating the geographical source of the goods, then Section 2(e)(1) is not satisfied.

The record showed that Applicant Bell Hill Vineyards derived the mark from a road named Bell Hill, near its vineyard (in Kelseyville, California). But there was insufficient evidence "to establish that Bell Hill designates a specific geographic region or location.other than this local road." The Board found that BELL HILL, as the name of a road (or even the local reference to a topographical rise) is so obscure or remote that purchasers of applicant's wine would typically fail to recognize the term as indicating the geographical source of applicant's goods."

Fraud: In view of the Board's findings regarding the remoteness of the BELL HILL reference, it ruled that Applicant did not commit fraud when it represented that its mark did not have a geographical significance. Moreover, Opposer did not present any evidence of Applicant's intent to deceive.

And so the Board dismissed the opposition.

TTABlog update: affirmed per curiam, December 13, 2010.

Text copyright John L. Welch 2009.


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