Wednesday, September 17, 2014

SUNNY HAZE Confusable With PURPLE HAZE for Beer, Says TTAB

The Board sustained this Section 2(d) opposition to registration of SUNNY HAZE for "beer; brewed malt-based alcoholic beverage in the nature of a beer," finding the mark likely to cause confusion with the registered mark PURPLE HAZE for beer, ale, lager, and malt liquor. Of course it all came down to the marks and, while noting the facts that HAZE is the second word in each mark and that HAZE may have some meaning in the context of beer, the Board concluded that applicant's mark appears to be a variant of opposer's. Abita Brewing Company, LLC v. Mother Earth Brewing, LLC., Opposition No. 91203200 (September 11, 2014) [not precedential].

Objections to opposer's survey: Applicant objected to opposer's likelihood of confusion survey because it did not include respondents from the limited number of markets in which applicant sells its products, and it did not present the marks in the manner in which consumers would have seen them in the marketplace (i.e., on beer bottles or cans, accompanied by the respective house mark). The Board, however, pointed out that applicant seeks a nationwide, geographically unrestricted registration, and so the universe of survey respondents was not overbroad. Likewise, marketplace conditions are irrelevant when the Board is considering the likelihood of confusion of two marks, SUNNY HAZE and PURPLE HAZE, in standard character form.

The marks: As we know, when the goods are, at least in part, identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion. Applicant argued that the words PURPLE and SUNNY, appearing as the first term in the respective marks, are dominant, and that the marks when viewed in their entireties evoke different images. The Board, however, found that the placement of the word HAZE does not distinguish the marks because SUNNY HAZE appears to be a variant of PURPLE HAZE. And even if HAZE has some meaning in the context of beer, as discussed below, "it is not so weak that consumers would  give greater significance to PURPLE and SUNNY and ascribe a different source to each brand of beer."

Applicant asserted that "haze" is descriptive of a characteristic of beer, and is used in the beer industry to measure beer clarity. Furthermore, PURPLE HAZE calls to mind the Jimi Hendrix song of the same name, along with psychedelic imagery associated with marijuana and LSD, imagery that SUNNY HAZE does not evoke.

The Board found no evidence that the general beer-drinking public would be familiar with the technical definition "haze." They would be aware, however, of the ordinary dictionary definition of "haze" (Webster's: "a cloudy appearance in a transparent liquid or solid"). According to opposer's website, PURPLE HAZE beer has a "subtle purple color and haze," and so the term does have some significance that consumers would recognize. (In addition, applicant pointed out that "purple" describes opposer's beer.) With regard to the Jimi Hendrix song, the evidence did not establish that the general beer-consuming public would make the connection between the mark PURPLE HAZE for beer and the song.

In any case, "at least those consumers who view the mark as having a descriptive feature and do not make the Jimi Hendrix association would see the marks PURPLE HAZE and SUNNY HAZE as more similar than they are different, as both identify a color or mood and both share the word HAZE." Moreover, even if the marks connote two different types of haze, a "purplish or dark haze" and a "bright, golden haze," they both connote types or colors of haze. And as to the ordinary dictionary meaning of "haze," it applies to both marks.

And so the Board concluded that this first duPont factor favored a finding of likely confusion.

Other factors: Opposer's evidence demonstrated that PURPLE HAZE beer has enjoyed some sales success, but it did not prove the widespread recognition required for fame under Section 2(d). The limited number of third-party registrations and Internet uses submitted by applicant were of little probative value vis-a-vis the strength of the PURPLE HAZE mark. Applicant argued that its craft beer is purchased with care, but neither the involved application or registration is limited to craft beer, nor are they limited as to price of channels of trade. In any case, even sophisticated purchasers are not immune to confusion when similar marks are used on identical goods. Finally, the lack of proof of actual confusion was of no probative value given the limited time of concurrent use of the mark, and the limited geographic distribution of applicant's product.

Balancing the relevant duPont factors, the Board found confusion likely and it sustained the opposition.

Read comments and post your comment here;

TTABlog note:  No mention that one who is drinking beer may have a more hazy recollection of each mark.

Text Copyright John L. Welch 2014.


At 7:27 AM, Anonymous Anonymous said...

This enrages me: "With regard to the Jimi Hendrix song, the evidence did not establish that the general beer-consuming public would make the connection between the mark PURPLE HAZE for beer and the song." Really? You're going to require a $20K survey for that? Whatever happened to judicial notice? Do TTAB judges ever go outside? Do they even breathe?

At 9:57 AM, Anonymous Anonymous said...

"Confuse me, while I kiss the sky"

At 10:20 AM, Anonymous Anonymous said...

The overall commercial impression of each mark is totally dissimilar. One clearly evokes Jimi Hendrix and is a drug reference, while the other is a nature reference. TTAB totally blew this one.

At 10:34 AM, Anonymous Anonymous said...

Glad it is not precedential. Entirely disagree with the TTAB on this one.

At 2:01 PM, Anonymous Anonymous said...

Bizarre, bizarre decision. The largest beer-drinking populations in the country, by sheer virtue of their numbers, have to be Baby Boomers and Millenials, many of whom are sadly afflicted with hipsterism. Is the TTAB suggesting that Baby Boomers are not aware of "Purple Haze" -Hendrix's most popular song, played at Woodstock? Is he suggesting that these "back-to-land," vinyl-collecting, 60's obsessed Millenials are not aware of Jimmy Hendrix? Why, because someone wrote in a blog they knew it was a song, but didn't know which one? Seriously? TTAB, "You got me blowin', blowin' my mind."

At 10:14 AM, Anonymous Thomas Walsh said...

I agree--bad decision. Though I wonder if it would have come out differently had the Applicant submitted copies of a few registrations covering both wine and beer (as many examiners have done in the past to show that beer and wine are related, e.g.

"Further, as for the third-party uses of PURPLE HAZE for red wine and wine caddies, there is no record evidence demonstrating that those products are commercially related to beer."

At 1:20 PM, Anonymous Rob said...

A very odd decision. Review by a district court would be in order.


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