Tuesday, April 14, 2015

TTAB Reverses BRUTOPIA BREWERY Refusal, Finding Pubs Not Related to Beer Festivals

Applicant Grill 505 came away with its glass half full in this appeal from a Section 2(d) refusal to register BRUTOPIA BREWERY for "beer" and for “pubs” [BREWERY disclaimed]. As to beer, the Board found the mark likely to cause confusion with the registered mark BREWTOPIA for “providing beer events and beer festivals; and providing online information regarding the beer events and beer festivals.” But evidence was lacking to show that applicant’s pubs are related to registrant’s beer event services. In re Grill 500 LLC, Serial No. 85951305 (March 31, 2015) [not precedential].


Not surprisingly, given the disclaimer of BREWERY in the applied-for mark, the Board found the involved marks to be similar in appearance, sound, connotation, and commercial impression. Applicant conceded as much in its brief on appeal.

Turning to the goods and services, the Board found, on the face of the respective identifications, that applicant’s beer and registrant’s services are complementary. Applicant’s beer could be purchased or sampled at registrant’s festivals, or could be the subject of registrant’s information regarding festivals. According to the USPTO’s website evidence, the principal subject of beer festivals is a wide variety of beers. [No kidding? ed.].

Applicant lamely argued that its beers are artisan craft beers local to the State of Rhode Island, whereas registrant’s services are not offered in connection with a brewery. The Board, of course, pointed out that there are no geographical restrictions in the application or cited registration, and that the involved services need not be identical but merely related in order to find confusion likely.

Applicant feebly asserted that consumers for the involved goods (applicant’s local craft beer sold only in a pub setting), and services would be highly sophisticated, thus minimizing the likelihood of confusion. The Board noted that applicant’s beer is relatively low priced, and that consumers of registrant’s services will include ordinary seeking to taste a variety of beers, without any particular level of sophistication. In any event, even sophisticated consumers may be confused when substantially similar marks are used on closely related goods and services.

However, the Board found no evidence to support the assertion that pubs are related to registrant’s services. The single webpage submitted by the examining attorney did not demonstrate the relatedness of the services.

The fact that breweries showcase their beer at beer events and festivals simply does not demonstrate that consumers who frequent both pubs and beer events and beer festivals will mistakenly believe that both types of services emanate from a common source, or otherwise are commercially related, even when the respective services are offered under similar marks.

The Board therefore affirmed the refusal as to applicant’s beer, but reversed the refusal as to pubs.

Read comments and post your comment here

Text Copyright John L. Welch 2015.

6 Comments:

At 10:19 AM, Blogger Paul Jorgensen said...

The TTAB and the PTO continue to demonstrate the bleary, vague non-drinker's view of the relatedness of alcohol products and services. Certainly those dainty pub places wouldn't participate in the unwashed beer festivals!

 
At 12:03 PM, Anonymous Anonymous said...

WYHA John? Given that 90% of 2(d) refusals are affirmed, I would have guessed that Pubs and Beer Festivals are related.

 
At 2:57 PM, Anonymous Anonymous said...

Looks to me like the Examienr failed to provide enough evidence. Here in the the bee soaked Pacific Northwest I think I could have found examples of beer that is sold in both brewery pubs and featured at beer festivals. Good on the Board for holding the Examiner to his burden of proof.

 
At 5:19 PM, Anonymous Anonymous said...

At least the "per se" rule has been broken in at least one case.

Maybe the Board reads these and realizes the examiner needs to support this with evidence? Or maybe as suggested in Note #3, not enough evidence was presented?

 
At 7:32 AM, Anonymous Anonymous said...

Proof that beer is sold at breweries and at beer festivals does not prove that the services are related...or did I misunderstand Anonymous' statement?

 
At 8:38 AM, Anonymous Anonymous said...

Pretty simply, it turned on the examiner's lack of evidence:

[Footnote 10.] We hasten to point out that, on a different and more complete record, we might arrive at a different result on the likelihood of confusion between the marks when used in connection
with the identified services.

 

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