Wednesday, August 19, 2015

Precedential No. 27: Fame of BUD for Beer Brings Victory over WINEBUD for Wine

The TTAB sustained an opposition to registration of the mark WINEBUD for "alcoholic beverages except beers; wines and still wines and sparkling wines; beverages containing wine, namely, sparkling fruit wine and still fruit wine; ready to drink alcoholic beverages except beers," finding the mark likely to cause confusion with the famous mark BUD registered for beer. The Board deemed the marks to be highly similar, the involved goods to be related, and the channels of trade and classes of consumers overlapping. The goods are purchased by ordinary consumers who are unlikely to exercise care in their purchases. Survey evidence corroborated the Board's conclusion. Anheuser-Busch, LLC v. Innvopak Systems Pty Ltd., 115 USPQ2d 1816 (TTAB 2015) [precedential].

Fame: The record evidence clearly established the fame of Opposer's BUD and BUDWEISER marks. Opposer has used its BUDWEISER mark since 1876 and its beer has been known as BUD since about 1895. Opposer has heavily advertised its products for at least fifty years and has long been a major sponsor of high-profile sporting events. Its products have frequently been the subject of unsolicited media attention. BUD LIGHT is the best-selling beer in America. Applicant did not address the issue of fame.

Fame, when found, plays a dominant role in the du Pont analysis. Although fame alone is not enough to establish likely confusion, "a finding of fame puts a heavy thumb on Opposer's side of the scale."

The marks: Applicant argued that WINEBUD is a "fanciful compound noun formed from the nouns WINE and BUD, an analogy to horticultural words such as 'rosebud.'" It contended that wine drinkers would perceive the latter half of its mark as connoting the bud of a vine, not as a reference to BUDWEISER the beer or the BUD family of marks. According to Applicant, BUD refers to BUDWEISER and BUDWEISER refers to someone or something from Budweis, and Budweis is the former name of České Budějovice, which is a small Czech town.

The Board was not persuaded, observing that there was no evidence that consumers would associate the mark BUDWEISER with a geographical location. Likewise as to the mark BUD, which is the more relevant mark here, there was no evidence that consumers would make a geographical connection.

Moreover, there was no evidence that WINEBUD has any meaning whatsoever. Consumers are likely to see WINE as the generic name for the beverage, and BUD, because of the fame of opposer's marks, as the source-identifying portion of the mark. The dominant portion of the applied-for mark is BUD, and therefore the mark WINEBUD and BUD are "highly similar."

The goods: The Board has found beer and wine to be related on a number of occasions. In fact the parties did not cite a single case in which beer and wine were found to be unrelated for purposes of Section 2(d). Opposer submitted six registrations for marks the cover both beer and wine, which provided some support for its case. Beer and wine are sold in many of the same trade channels. Neither beverage is inherently expensive, and inexpensive products may be purchased without great care.

The Board concluded that beer and other alcoholic beverage, including wine, are related. Although opposer has never sold wine under the BUD brand, the fame of the BUD mark "makes it likely that purchasers seeing a similar 'BUD' mark on wine would think that Opposer has expanded its product line to include wine." The relatedness of the goods, overlap in channels of trade and classes of consumers, and the conditions of purchase supported a finding of likely confusion.

Survey evidence: Opposer's survey found that 24% of respondents believed that a wine sold under the WINEBUD mark would be "put out by, affiliated or connected with, or approved or sponsored by" Opposer. Applicant alleged various flaws in the survey, but the Board has treated the type of flaws asserted as merely affecting the probative weight of the survey, not is admissibility.

Although the survey expert, Dr. Edward A. Blair, had never conducted a survey involving a wine trademark, there was nothing to suggest that such a survey would differ significantly from any other survey. The Board found him to be highly qualified. Moreover, the general design of the survey was appropriate, following the "Eveready" model.

The Board also rejected applicant's argument that a 24% rate of confusion was insufficient to support a finding of likelihood of confusion. Courts have often found survey results probative even when they suggested far less than 50 percent confusion. The Board concluded that a 24% level of confusion, if representative of the potential rate of confusion of the appropriate universe of potential purchasers, is supportive of Opposer's claim.

Applicant further criticized the survey because it was conducted online. The Board noted that all survey methods have inherent advantages and disadvantages. Applicant offered no convincing reason why opposer's survey should be given reduced weight or no weight at all. The Board saw nothing inherently wrong in the fact that an Internet survey is "quicker and cheaper."

Applicant contended that Dr. Blair could have used a "mock up visual of a wine bottle bearing a label," rather than the word WINEBUD in capital letters on a blank background, but the Board found no problem with that approach, since applicant is seeking a standard character registration, and any particular presentation on a bottle or container would have unnecessarily restricted the survey to that presentation.

Applicant also argued that the size of the survey sample (400 respondents) was too small to provide meaningful results. The Board observed that "a well-designed and conducted survey using a representative sample can permit valid inferences to be drawn about a very large population by studying only a relatively small fraction of it. Thus, the opinions of several hundred people might indeed be probative of the opinions of millions."

The participants in opposer's survey were split into two groups: a test group (201) who considered the mark WINEBUD, and a control group (199) who were shown the mark WINEBLOSSOM. Only the test group was directly relevant to the issue here. That left the question: "How precise is the result of a survey using 201 test subjects?"

At some point, as small sample may provide results so imprecise as to be of little or no value. The imprecision can be calculated and expressed as a "confidence interval at a given confidence level." Dr. Blair did not provide that indicator, but based on published statistical tables, the Board found "the lower bound of the confidence interval for this survey is between 17.5 percent and 18.3 percent."

In other words, even construing the survey in the best light for Applicant, the results suggest that at the 95 percent confidence level, at least 17.5 percent of the relevant population is likely to be confused by Applicant’s use of its mark for wine. While that figure would not be considered a high level of confusion, neither is it negligible or de minimis.

The Board therefore rejected applicant's contention that the sample size for Dr. Blair's survey was too small to yield meaningful results. It found the survey results to be probative, but not strong evidence that confusion is likely.

Conclusion: The Board concluded that use of WINEBUD on wine and other alcoholic beverages is likely to cause confusion vis-a-vis opposer's BUD mark for beer. The Blair survey corroborated that conclusion. The Board declined to reach opposer's dilution-by-blurring claim.

Read comments and post your comment here.

TTABlog comment: As they say, That Bud! That's Wine! There are not many marks as famous as BUD, other than TTABlog. I think the Board should have also considered the dilution issue, since the Section 2(d) ruling may be a little shaky. What do you think?

Text Copyright John L. Welch 2015.


At 10:37 AM, Anonymous Anonymous said...

I think you have to be a bit reckless to think that you can register a "bud" mark for any type of alcoholic beverage in this country. It's a waste of money and time. Not sure why an examiner would pass it on, but once it got opposed, not sure why you continued, especially making bogus arguments about the city of Budweis, claiming that Bud is geographically descriptive, etc. in the U.S. Maybe that might fly in the Czech Republic, but 150 years of use in the US, that shipped sailed a long time ago.
In august 1960, TIME Magazine ran the following article:

To promote its slogan "Where there's life . . . there's Bud," the Anheuser-Busch brewery has spent $40 million. Last week it filed suit against the Chemical Corp. of America, which makes a floor wax that kills bugs too. Its complaint: the chemical company's new slogan—"Where there's life, there's bugs"—tended to "disparage" Budweiser. Chemical Corp. blandly rejoined that its inspiration was really 18th century English Poet John Gay, who wrote: "While there is life there's hope, he cried." The court, in a temporary injunction, told Chemical Corp. to apply bug killer to its own slogan.

How much you think has been spent promoting BUD since then?


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