TTAB Test: Are MOONSHINE REDEFINED and REDEFINING VODKA Confusable for Liqour?
Rabbit Hole Spirits sought to register the mark MOONSHINE REDEFINED for "distilled spirits; liquor; whiskey" [MOONSHINE disclaimed], but the USPTO refused registration on the ground of likelihood of confusion with the registered mark REDEFINING VODKA for "alcoholic beverages, except beers" [VODKA disclaimed]. The goods, as identified, overlap, but are the marks confusably similar? How do you think this came out? In re Rabbit Hole Spirits, LLC, Serial No. 86193667 (June 11, 2015) [not precedential].
Because the goods are legally identical (the goods identified in the cited registration encompass those of the application), the Board must presume that they travel in the same channels of trade to the same classes of consumers.
Rabbit Hole contended that the cited mark is "highly descriptive," but the Board observed that any such attack on the cited registration, which enjoys a presumption of validity, is improper. And so the Board considered applicant's position to be that the cited mark is highly suggestive and therefore weak.
Rabbit Hole pointed to 251 third-party registrations for marks containing the words REDEFINING, REDEFINED, or REDEFINE. The Board noted that, although such registrations are not evidence that the marks are in use, they may operate in the manner of a dictionary to show that a terms has a significance in a particular field. Here, nearly all of the third-party registrations covered goods and services very different from alcoholic beverages. However, dictionary definitions of "redefine" as "define again or differently" indicated that this meaning would be applicable to a broad range of goods and services. The Board therefore concluded that REDEFINING has a laudatory significance and it agreed with applicant that REDEFINING VODKA is not entitled to the broad scope of protection accorded an arbitrary mark. Nonetheless, even suggestive marks are entitled to protection against confusingly similar marks.
Rabbit Hole next pointed to several labels submitted to the Alcohol and Tobacco Tax and Trade Bureaus as evidence of third-party use of REDEFINING or REDEFINED in connection with alcoholic products. However, in only two did the words appear in the manner of a trademark. The Board observed that mere approval of a label by a government agency does not establish that the goods are actually being sold or that public is exposed to the mark.
Turning to the marks at issue, the Board agreed with applicant that there are specific differences in the marks [I agree, too - ed.] However, both marks consist of a variation of the word REDEFINE coupled with a generic term for an alcoholic beverage. The marks convey the same connotation and commercial impression of a beverage that is "different from the others, i.e., that it has been 'redefined.'" Consumers are likely to view the marks as indicating a single source, with the generic portions of the marks simply identifying the particular type of beverage. And the marks have a similarity in appearance and pronunciation. [Really? - ed.]. The Board concluded that the similarities in the marks far outweigh the differences.
Finally, Rabbit Hole lamely argued that the fourth du Pont factor - the conditions of sale - favored applicant because customers looking to purchase vodka would not buy moonshine. The Board noted for the umpteenth time that the issue is not whether consumers would confuse the goods, but whether they would confuse the sources of the goods. There was no evidence that purchasers of alcoholic beverages are particularly sophisticated or would exercise a greater standard of care than the general public. [Possibly less care, depending on the quantity of alcohol imbibed prior to the purchasing decision - ed.].
Balancing the relevant du Pont factors, the Board found confusion likely and it affirmed the refusal.
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Text Copyright John L. Welch 2015.