Thursday, May 21, 2015

TTAB Test: Are COW CREEK and BULL CREEK BREWING Confusable for Beer?

This applicant found itself up a creek when the USPTO refused registration of its mark COW CREEK for beer, finding the mark likely to cause confusion with the registered mark BULL CREEK BREWING, in standard character and design forms, for "beer, craft beer, and ales" BREWING disclaimed]. Of course with the goods identical in part, a lesser degree of similarity between the marks is necessary to support a Section 2(d) refusal. But who would confuse a cow with a bull? How do you think this came out? In re BWBC, Inc., Serial No. 76711077 (May 19, 2015) [not precedential].

As to the marks, the Board noted that BREWING is a merely descriptive or generic term that is accorded less weight in assessing the similarities between the marks. It all came down to the words COW and BULL, which were the subject of considerable discussion by applicant and Examining Attorney Michael Webster.

Several dictionaries defined the word "cow" as including domestic bovines of either sex. "Bull" is defined as a male of any bovine species, or even a "male cow." The Examining Attorney therefore contended that the general impression of the word "cow" would include any domestic bovine of either gender.

Applicant noted that the primary definitions of "cow" indicate a female animal, and only the second or third definitions in the dictionaries included the gender neutral reference, and some definitions in the record did not have any neutral definition. It argued that "the most understood definition is listed first." Applicant also submitted several articles and website pages that referred separately to cows (female) and bulls (male).

The Board, however, found the marks to be more similar than different. Whether the gender neutral dictionary definitions are the first or third is of no great concern, nor does it matter than some definitions are labeled "informal." Moreover, the definitions of "bull" as a male cow supported the contention that "cow" is used to refer to both males and females. The Board concluded that the marks at issue engender the same commercial impression.

As to the cited design mark, the words BULL CREEK are dominant. The design component only reinforced the word BULL in the mark. Again the Board found applicant's mark to be similar to the cited mark.

And so the Board affirmed the refusal to register.

Read comments and post your comment here

TTABlog note: Would you appeal from this TTAB decision? Would you take it to the district court in order to add more evidence, keeping in mind the possibility (after Shammas v. Focarino) that you will wind up paying all the USPTO's expenses?

Text Copyright John L. Welch 2015.


At 9:54 AM, Anonymous joe dreitler said...

And that is the conundrum. How many clients are willing to risk paying who knows how much for the PTO's time to defend itself in a USDC? Even if the PTO's decision is questionable and you think it is a winner. Better have deep pockets. Appealing it to the CAFC is likely to be a loser since it's based on the same record in the TTAB.

At 11:19 AM, Anonymous Anonymous said...

I agree with this decision and think it reflects marketplace reality. Craft beer has exploded and brewers have turned to creating a "family" of beer names to identify different beers, e.g. Trillium Brewing of Boston uses various Boston "STREET" names, Oskar Blues brewery in Colorado has no less than 10 different beers combining "CHUB" with another term, e.g. “OLD CHUB”, “NIB SLIP CHUB”, “TRANNY ANNY CHUB”, etc., Russian River Brewing from Cali has a family of beers having religious terms, e.g. "BENEDICTION", "CONSECRATION", "DAMNATION", "PERDITION", etc. This is not to say all iterations are protectable, just that it's an industry trend. While not as extreme as the latter example, "COW CREEK" and "BULL CREEK" certainly have the feel of a family of brews, e.g. “CALF CREEK”, “CATTLE CREEK”, etc. and the design of both marks with the horns appear to be nearly identical. Case by case of course but I agree here.


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