WYHA? TTAB Finds CAOS for Tequila Confusable with CHAOS COCKTAILS for Alcoholic Mixed Beverages
The Board affirmed a Section 2(d) refusal of the mark CAOS for tequila, finding the mark likely to cause confusion with the registered marks CHAOS COCKTAILS and CHAOS ON THE ROCKS for "alcoholic mixed beverages except beer" [COCKTAILS disclaimed]. Applicant's argument that his mark CAOS would be pronounced "khaws" fell on deaf ears. Would You Have Appealed? In re Brent Theyson, Serial No. 85663894 (December 4, 2015) [not precedential].
The Marks: The Board found the word CHAOS to be the dominant and most significant portion of the cited marks. CHAOS appears as the first word in each mark, and has more source-identifying significant than the remainder of the marks, since both COCKTAILS and ON THE ROCKS are descriptive of the goods.
As to aural similarities, there is no correct pronunciation of a mark (at least if it is not a known word). Applicant's suggestion that CAOS is pronounced "khaws" was pooh-poohed by the Board: "[B]ecause "chaos" is an actual word, and "caos" and "khaws" are not, we find that consumers are likely to perceive and pronounce CAOS as the word CHAOS, that is, as "kei,as." Moreover the words have the same connotations: "a situation in which everything is confused and in a mess," perhaps suggesting the loss of control that may occur when one drinks alcohol.
The Board concluded that the marks "are sufficiently similar in appearance, sound, connotation and commercial impression that, if used in connection with related goods, confusion would be
likely to occur."
The Goods: The Board agreed with applicant that there is no per se rule dictating that all alcoholic beverage products are related for Section 2(d) purposes. However, the record evidence established the relatedness of tequila and "alcoholic mixed beverages except beers."
The evidence included three examples of third-party websites identifying tequila as a common ingredient in many mixed alcoholic beverages such as the Margarita, and six third-party registrations covering both tequila and alcoholic mixed beverages. Examining Attorney Karen K. Bush also provided evidence of three online websites offering tequila and prepared cocktails, including cocktails containing tequila. Since there are no limitations on channels of trade or classes of consumers in the involved application and registrations, the Board concluded that the goods travel in the same normal channels of trade to the same classes of customers.
Applicant feebly contended that the involved goods are different: Applicant sells "pure, unadulterated blue agave tequila," whereas Registrant offers "/low calorie, low carb' vodka cocktail[s], which mix vodka with fruit and low calorie sweeteners." Of course, we all know that what Applicant and Registrant actually offer under their respective marks is simply irrelevant. The Board must rule based upon the identifications of goods as set forth in the application and registrations, without regard to what the real world evidence shows the goods to be.
Concluding that the marks are similar, the goods are related, and the channels of trade and consumers overlapping, the Board found confusion likely, and it affirmed the refusal.
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TTABlog comment: Well, would you have appealed? Applicant's attempt to limit the goods in the application and cited registrations is an example of the Number One losing argument at the TTAB. If that's the case, why worry about issue preclusion under B&B Hardware?
Text Copyright John L. Welch 2015.