TTAB Test: Are Tequila and Wine Related for Section 2(d) Purposes?
Proximo Spirits applied to register the mark COCOMO for "tequila; tequila based prepared cocktails," but Examining Attorney Tamara Hudson refused registration under Section 2(d), deeming the mark likely to cause confusion with the registered mark KOKOMO for wine. Applicant contended that its mark suggests coconuts, while the cited mark references Kokomo, Indiana. As to the goods, applicant pointed out that registrant is a winery, and that wineries produce only wine. How do you think this came out? In re Proximo Spirits, Inc., Serial No. 85865962 (March 16, 2015) [not precedential].
The Board found the marks similar in appearance and pronunciation, the latter factor being particularly important because the goods may be requested verbally without prior reference to a menu. As to meaning, there was nothing in the record to suggest that consumers would associate registrant's KOKOMO wine with Kokomo, Indiana, nor was there any evidence to show that applicant's mark, when used with tequila, has anything to do with coconut.
As to the goods, the Board acknowledged that not even an unsophisticated purchaser would mistakenly buy wine expecting tequila, or vice versa. [At least while sober - ed.]. But the issue is not whether consumers would confuse the goods, but whether they would be confused as to the source of the goods.
The Board presumed that the involved goods would be sold in all normal channels and to all normal classes of purchasers for such goods. The trade channels for both would include liquor stores, bars and restaurants, and the alcoholic beverages sections of retail outlets. Thus the channels of trade are the same, and the customers include unsophisticated purchasers.
The Board observed that the CAFC and the Board "have repeatedly held spirits and wine to be related."
"[a] typical consumer of alcoholic beverages may drink more than one type of beverage and may shop for different alcoholic beverages in the same liquor store. Moreover, a person may serve more than one kind of alcoholic beverage before or during a meal or at a party."
Applicant argued that it is "common knowledge" that wineries sell only wine, but the Board concluded that, even if true, that does not rebut the examining attorney's showing that consumers would assume a connection between wine and tequila sold under very similar trademarks. The examining attorney submitted third-party registrations covering both wine and tequila, and Internet evidence that some entities distribute and sell both wine and tequila. Moreover, restaurants and bars offer wine and tequila pairings, and wine may be mixed with tequila in drink recipes.
This evidence corroborated the Board's finding that wine and tequila are related. It also showed that the goods are complementary products (like the pepper sauce and agave in In re Davia, 110 USPQ2d 1810 (TTAB 2014) [precedential]).
The Board therefore found confusion likely and it affirmed the refusal to register.
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TTABlog note: It seems likely that every alcoholic beverage would be found related to every other one, because they can be purchased in the same stores, etc., appear together in some third-party registrations, and may be mixed together. In other words, there is a de facto per se rule that all alcoholic beverages are related. Right?
Text Copyright John L. Welch 2015.