Test Your TTAB Judge-Ability: Are MOCAMBO for Rum and MOCAMBO for Cigars Confusingly Similar?
You've been doing pretty well lately in your judging. Not perfect, but then who is? So sit back, light up a stogie, have a glass of your favorite beverage, and test your judge-ability on this case. The PTO refused registration of the mark MOCAMBO for rum, finding it likely to cause confusion with the identical mark registered for cigars. How would you decide the appeal? In re Licores Veracruz, S.A. de C.V., Serial No. 77753913 (January 26, 2012) [not precedential].
The marks are identical, and therefore a lesser degree of similarity between the involved goods is necessary to support a finding of likely confusion.
Examining Attorney Saima Makhdoom maintained that the goods are complementary products that are marketed together for simultaneous consumption. Various internet articles referred to the pairing of rum and cigars, and other website advertised rum and cigars. One website offered both rum and cigars under the brand name COHIBA, and another offered "rum cigars." The Board was persuaded by the evidence that rum and cigars are consumed together and sold in the same channels of trade.
[W]e find that cigars and rum will be encountered by the same consumers under circumstances that could, because of the identity of the marks, give rise to the mistaken belief that they originate from the same source.
Applicant argued that the PTO went too far: "Persons that drink rum and smoke wear clothing .... Does that mean that one would believe that pants or shoes branded MOCAMBO ... come from the same source as the rum or as the cigar?" That argument, the Board noted, ignores the record evidence regarding the relationship between cigars and rum.
The Board found this case similar to the JOHNNIE WALKER case, where it deemed whiskey and cigars to be related, and a similar holding in the CASCADE case involving cigarettes and whiskey. [Reminds me of a song: "Cigarettes and whiskey and wild, wild women; they'll drive you crazy, they'll drive you insane." -ed.].
And so the Board affirmed the refusal.
Text Copyright John L. Welch 2012.