Finding Beer and Wine Closely Related, TTAB Affirms 2(d) Refusal of "5 GOLDEN RINGS" for Beer

The Board affirmed a Section 2(d) refusal to register the mark 5 GOLDEN RINGS for "beer; malt liquor," finding the mark likely to cause confusion with the registered mark GOLD RING for wines. The Board deemed the marks to be similar in sound, appearance, connotation, and commercial impression, and third-party registration and Internet evidence convinced the Board that the goods are "closely related." The Bruery, LLC, Serial No. 85656671 (September 24, 2014) [not precedential].

Applicant submitted a Wikipedia entry for  the carol, "The Twelve Days of Christmas," arguing that the phrase "five golden rings" engenders a different commercial impression than the cited mark GOLD RING because the former is "so intrinsically associated with Christmas that it is difficult to read it without elongating the vowels." Unfortunately, applicant submitted that bit of evidence with its appeal brief, and the Board sustained Examining Attorney Natalie Polzer's objection that the submission was untimely.

The Board found that, considering the marks as a whole, the addition of the number "5" and the pluralization of "rings" in the applied-for mark were insufficient to outweigh the similarities in the marks.

As to the goods, applicant contended that consumers would not be easily confused between its craft brewed products and registrant's wine. The Board pointed out, however, that the issue is not whether consumers would confuse the goods, but whether they would be confused as to the source of the goods. Moreover, applicant's identification of goods is not limited to "craft" beer.

The examining attorney submitted numerous use-based third-party registrations showing that the same entity has registered a single mark for both beer and wine. Moreover, Internet evidence demonstrated that many third parties produce and offer both beer and/or malt liquor and wine. And it is not uncommon for craft/microbreweries to also produce wine, sometimes under the same house mark. The Board therefore found that the goods are "closely related." [Why doesn't the Board just take judicial notice of these facts and declare that beer and wine are per se related for Section 2(d) purpose. That would save everyone a lot of time and agony. - ed.]

The presumed channels of trade channels for beer and wine overlap, and in fact the record showed that both goods are sold in liquor stores and by online retailers. [Doh! Judicial notice?]

Finally, applicant maintained that wine and craft beers are rarely purchased on impulse and that consumers of these goods are highly educated [really?] and able to distinguish different brand names. The Board perceptively noted that not all consumers of these goods are highly educated. The goods may be inexpensive and purchased by the public at large. Moreover, consumers who are sophisticated and knowledgeable about alcoholic beverages are not necessarily sophisticated or knowledgeable about trademarks. [And what about consumers who have imbibed an alcoholic beverage, and are then less careful about the next purchase? - ed.].

Considering the pertinent duPont factors, the Board found confusion likely, and it affirmed the refusal.

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TTABlog note:  Had applicant submitted the Wikipedia evidence in timely fashion, would that evidence have made a difference? Or is this like the recent PURPLE HAZE case, where the Board observed that those consumers who were unaware of the Jimi Hendrix classic would find the mark confusable with SUNNY HAZE?

Text Copyright John L. Welch 2014.