Friday, July 31, 2015

TTAB Test: Are MAYARI and MAYA Confusable for Wine?

Oakville Hills Cellar opposed registration of the mark MAYARI for wine, alleging a likelihood of confusion with its registered mark MAYA, also for wine. The goods are identical, the channels of trade and classes of consumers are presumed to be the same, and the application and registration encompass inexpensive wines purchased with no more than ordinary care. But are the marks confusingly similar? Oakville Hills Cellar, Inc., dba Dalla Valle Vineyards v. Georgallis Holdings, LLC, Opposition No. 91211612 (July 16, 2015) [not precedential].

Of course, when the goods are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion. Opposer Oakville argued that the first part of the opposed mark is more likely to be remembered, but the Board saw no reason to consider the letters MAYA separate from the letters RI.

Oakville contended that, at certain orientations of the wine bottle, the word MAYARI on applicant's label may appear as MAYA, depending on the vagaries of how the wine bottles are placed on a shelf. The Board, noted, however, that although "mistake" is to be considered under Section 2(d), the likelihood of such a mistake was a matter of speculation absent relevant evidence.

As to sound, the Board recognized that MAYARI may be pronounced with emphasis on the second or third syllables. Oakville argued that the likelihood of confusion is increased when the goods are ordered by name "in a bar under noisy, chaotic conditions," where the small difference of the RI may not be perceived.

The parties disagreed vigorously as to the meanings of the marks. The Board found that most consumers would likely perceive MAYA "as a female personal name or the name of the pre-Columbian civilization, while most customers would perceive MAYARI as a coinage without meaning." Consumers "would likely find the term MAYA to be somewhat familiar, while finding MAYARI unfamiliar."

The Board concluded that, overall, the marks at issue create "significantly different commercial impressions." Therefore, the first du Pont factor weighed against a finding of likelihood of confusion.

Opposer Oakville claimed that its mark MAYA is famous, but its evidence was too scant to establish fame. Applicant Georgallis argued that the presence of FDA-required information on wine labels would assist in distinguishing the sources of the involved goods, but the Board pointed out that such information will not reliably serve to distinguish confusingly similar marks. And, of course, the label information is irrelevant when the marks are used in advertising, etc.

Applicant pointed to several third-party MAYA-formative marks registered for beverages, but the Board found that evidence irrelevant absent proof of use of the marks. The lack of any evidence of actual confusion was a neutral factor since there did not appear to be a reasonable opportunity for confusion to occur, given the vast difference in actual price between the parties' goods.

Balancing the relevant du Pont factors, the Board found the marks to be "sufficiently different that, under normal commercial conditions for the sale of wines, confusion is not likely."

Read comments and post your comment here

TTABlog comment: Well, how did you do? I probably would have sided with Opposer.

Text Copyright John L. Welch 2015.


At 12:30 PM, Blogger TMBaron said...

Since the TTAB often, IMHO, goes way overboard in finding likelihood of confusion and refusing marks that would really be very unlikely to cause consumer confusion, I am pleasantly surprised to see that they were more rational in this case. The very dubious arguments presented by Opposer (e.g. "the bottle might be turned exactly the wrong direction")clearly demonstrate that the opposition was not well founded.

At 4:21 PM, Anonymous Anonymous said...

I guessed correctly for once.

I think this is a good decision, but as with most of these it basically comes down to a flip of the coin and maybe how the judges feel that day.

At 4:26 PM, Anonymous Anonymous said...

It's most interesting that the TTAB allowed for an analysis of the different possible pronunciations of a mark. More often they blindly rule for the Opposer and take whatever incredible pronunciation the Opposer argues.

At 10:30 AM, Anonymous Christopher Stoller said...


Leo's Stoller"s Opening Brief is due September 10,2015,we expect the 7th. Circuit Panel to grant the relief asked for.Complex Appeals that we draft,the guests always find in our favor.

Christopher Stoller
Legal Researcher.

At 11:40 AM, Blogger Tara Aaron said...

The opposers could have made better arguments, but we've seen LOC refusals sustained for a lot less. And if the applicant's mark could be pronounced in 3 different ways, shouldn't that consideration have been neutral?


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