TTAB Test: Is "ARMADALE" for Vodka Confusable with "ARMADA" for Sherry?
AV investment Group LLC applied to register the mark ARMADALE for vodka, but Sandeman Sons opposed, claiming a likelihood of confusion with its registered mark ARMADA (in slightly stylized form) for sherry wine. Opposer argued that the applied-for mark merely adds "LE" to its arbitrary mark, and that vodka and sherry are related because they are consumed together and are offered by some third parties under the same mark. How do you think this came out? Geo G. Sandeman Sons & Co., Limited v. A V Investment Group LLC., Opposition No. 9120208 (February 20, 2015) [not precedential].
The marks: The Board agreed that ARMADA is an arbitrary term for an alcoholic product, and a term that consumers would recognize, but applicant's mark ARMADALE is not a recognized word. The addition of "LE" makes the latter mark look like a combination of "ARMA" and "DALE," creating the impression of a geographic reference as opposed to a fleet of warships. Moreover, applicant's mark would likely be pronounced as two words, ARMA and DALE, rather than as ARMADA and LE.
Although there is some similarity in appearance between the marks, the differences in connotation and pronunciation require that the first du Pont factor be weighed strongly in favor of a finding that there is no likelihood of confusion.
The goods: Opposer submitted a number of cocktail recipes that include both sherry and vodka, as well as Internet evidence that wine and vodka may be offered under the same mark. The parties agreed that the channels of trade for the goods may overlap, and that some of the purchasers of the goods may exercise only ordinary care. The Board found that these factors slightly favored opposer.
Applicant pointed out that its prior, now-cancelled registration for ARMADALE co-existed with the cited registration on the Trademark Register. The Board, however, pointed out that this fact is entitled to little weight.
“The existence of these registrations is not evidence of what happens in the market place or that customers are familiar with them nor should the existence on the register of confusingly similar marks aid an applicant to register another likely to cause confusion, mistake or to deceive.” In any event, the ’636 Registration is cancelled. Cancellation “destroys the Section [7(b)] presumptions” to which an existing registration is entitled, In re Hunter Publ’g Co., 204 USPQ 957, 963 (TTAB 1979), so it cannot even be presumed that the prior registration was valid when registered.
Relying primarily on the differences in the marks, the Board concluded that confusion is not likely and it dismissed the opposition.
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Text Copyright John L. Welch 2015.