TTAB Test: Are Jams and Jellies Related to Beer for Section 2(d) Purposes?
Allagash Brewing Company opposed an application to register the mark ALLAGASH WILD for "jellies and jams; marmalades; preserved fruits and vegetables" [ALLAGASH disclaimed]. alleging a likelihood of confusion with the registered mark ALLAGASH for beer. The marks are pretty close, aren't they? But what about the goods? How do you think this came out? Allagash Brewing Company v. Cathie A. Pelletier, Opposition No. 91214028 (September 22, 2015) [not precedential].
The marks: Allagash is the name of a town and a river in Maine, and for Applicant Pelletier's goods it is geographically descriptive. Although ALLAGASH is the first portion of applicant's mark, and the first portion of a mark is more likely to remembered by consumers, the word's descriptiveness may result in the word WILD "overcom[ing] its secondary position." However, WILD is at least suggestive of jams and jellies since Pelletier intends to make them from wildflowers and berries. So even if WILD has more source-identifying significance than ALLAGASH, that was not enough to distinguish the marks. [The Board also noted that "wild" is a type of Belgian-style beer and is brewed by Opposer].
The Board concluded that the marks are "very similar in appearance, sound, meaning and overall commercial impression."
There was no evidence of third-party use of ALLAGASH by other food or beverage companies. Opposer is listed in the top 50 craft brewing companies by sales, and the evidence indicated that Opposer's mark "has attained commercial strength in the craft beer market."
The goods: Opposer submitted several use-based third-party registrations that cover beer and jam or jellies. Moreover, opposer's president testified that "it is common for brewing companies to make and sell food products." For example, Belgian breweries have traditionally made cheese. [What about American breweries? - ed.]. Other breweries sell mustard, pickles, and sausage. Furthermore, he asserted, craft beer is commonly associated with food. [So beer is related to all food? ed.]. Examples of goods sold under the same mark included beer and cheese, beer and clam chowder, beer and hot sauce, beer and ice cream, and beer and peanut brittle. [What is the extent of sales of these products? - ed.]. The record also included online recipes using beer as an ingredient. [One could probably find a recipe on line for anything at all as an ingredient - ed.].
Opposer's president further testified that it is "very common ... for breweries to extend their brands into lots of different kinds of foods; and you'll commonly find these foods, you know, not only in their stores, but in retail stores like grocery stores." [Where is the corroboration for this obviously self-serving testimony? - ed.].
The Board concluded that at least craft beers, which fall within opposer's broad identification of goods, are "sufficiently commercially related to jams and jellies such that consumers could be confused as to source."
There were no limitations on channels of trade in the pleaded registration of opposed application. The involved goods are all sold in retail food and beverage stores, including grocery stores in some states. And even if purchasers of craft beer are careful consumers, consumers are not immune to source confusion.
The Board concluded that confusion is likely and it sustained the opposition.
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Text Copyright John L. Welch 2015.