Wednesday, March 27, 2013

CHAMPARTY Not Confusable With CHAMPAGNE for Sparkling Wine, Says TTAB

Bursting opposers' bubble, the Board dismissed this Section 2(d) opposition to registration of the mark CHAMPARTY for "alcoholic beverages except beers," finding the mark not likely to cause confusion with the common law certification mark CHAMPAGNE for sparkling wine. The Board concluded that, although the goods overlap, the marks are simply too different. Comité Interprofessionel du Vin de Champagne and Institut National de l’Origine et de la Qualité v. Shlomo David Jehonadav, Opposition No. 91195709 (March 8, 2013) [not precedential].

Opposers CIVC and INAO contended that the designation CHAMPAGNE is protectable as a common law certification mark under U.S. law, and that under French law they are charged with the control, promotion, and protection of that mark. The Board therefore found that opposers had standing to pursue this opposition.

Applicant made only minimal efforts to defend himself. The Board found the involved goods to be legally identical because it presumed that applicant's goods, as identified, include sparkling wines identical to those certified by opposers. It therefore also presumed that the goods travel in the same channels of trade to the same classes of consumers.

As to the marks, however, the Board found it unlikely that "customers of average perceptual abilities would mistake one mark for the other or find the marks to be significantly similar" even if used for identical goods. The English word "party" is a salient feature of the applied-for mark. That portion of the mark is "likely to counteract the visual similarities between the two marks in the perception of consumers."

Moreover, the marks are not likely to give rise to phonetic confusion. Although there is no correct pronunciation of a coined mark like CHAMPARTY, consumers will likely give the latter portion of the mark the pronunciation of the common word "party." CHAMPAGNE is usually pronounced so that the latter portion rhymes with "pane," which has a sound not likely to be confused with "party." If the French pronunciation is given to CHAMPAGNE, it would have a sound nearly unique in the U.S. market. And if consumers see the common word "champ" in the applied-for mark, they would pronounce it quite differently that the first syllable of CHAMPAGNE.

As to meaning, CHAMPAGNE is a term well known as a type of sparkling wine. CHAMPARTY has no literal meaning. Opposer's suggested that CHAMPAGNE is often associated with celebrations and thus PARTY might suggest a connection with CHAMPAGNE, but the Board was unimpressed. There was no evidence that CHAMPAGNE is more closely connected with celebrations that any other alcoholic beverage.

The Board saw no support for opposers' argument that consumers would see CHAMPARTY as a sort of "brand extension" of the CHAMPAGNE mark, nor did it find any other reason why consumers might perceive a relationship or connection between the marks of the parties.

The Board concluded that applicant's mark "differs substantially from opposers' asserted certification mark, so as not to be likely to cause confusion, mistake or deception as to the source of applicant's goods."

Read comments and post your comments here.

TTABlog note: To me, CHAMPARTY suggests that applicant is selling some party drink that includes CHAMPAGNE. Maybe a punch or something. What do you think? But is that confusion as to source?

I also think that if someone is selling a sparkling wine called CHAMPARTY, the consumer would likely pronounce the CHAM part like CHAMPAGNE. Besides, there is no correct pronunciation of a trademark, is there?

Text Copyright John L. Welch 2013.


At 8:54 AM, Anonymous Orrin A. Falby said...

John, I did not read the decision, but this apears to be a case of the familiar vs the unfamilar. Where one mark is known (CHAMPAGNE) and the other is unfamiliar (CHAMPARTY), the Board has repeatedly held that the familiar term is readily distinguishable from the unfamiliar. In holding that concurrent use of VULKENE and VULCAN in connection with building wire is not likely to cause purchaser confusion, the Board stated, "VULKENE is an arbitrary and coined word. We consider this to be a point of great significance . . . We entirely agree . . . that 'the human mind has little difficulty differentiating between the familiar and the unfamiliar'". In re General Electric Co., 134 U.S.P.Q. 190 (CCPA 1962); see also National Distillers Corp. v. William Grant & Sons, Inc., 184 U.S.P.Q. 34, 35 (CCPA 1974) (holding that DUET is a very common word in the English language and would be distinguished from the word DUVET); Faberge, Inc. v. Dr. Babor GmbH & Co., 219 U.S.P.Q. 848 (TTAB 1983) ("purchaser of cosmetic products would have no difficulty in distinguishing between the well-known easily recognized word BABE and applicant's unfamiliar BABOR"); Jacobs v. International Multifoods Corp., 212 U.S.P.Q. 641 (CCPA 1982) (Commonly known term, BOSTON TEA PARTY and uncommon term, BOSTON SEA PARTY would not be confused despite apparent similarities.)

Additionally and in response to one of the questions you pose, even if CHAmPARTY mark was to cause the consumer to recall CHAMPAGNE, this would not be determinative of the issue of likelihood of confusion. Instead, "[t]he very fact of calling to mind may indicate that the mind is distinguishing, rather than being confused by, two marks". See In re P. Ferrero & C.S.p.A., 178 U.S.P.Q. 167 (CCPA 1973) (TIC TAC for candy not likely to cause confusion with TIC TAC TOE for ice cream.); see also Lever Brothers Co. v. Producers Chemical Service, 128 U.S.P.Q. 7 (CCPA 1960) (SHUX registrable over LUX for like goods (off-the-shelf soap products) while fully conscious of the fact that purchasers seeing or hearing SHUX would almost certainly think of LUX and at the same instant realize the distinction.)

At 8:56 AM, Anonymous Anonymous said...

My first reaction to your lead was check to the calendar to see if it was already April 1st. Am I the only one who saw "Champarty" and thought "Champerty"?

At 9:23 AM, Anonymous Anonymous said...

I first read it as "champerty" --


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