TTAB Test: Is "IT'S PIRATE TIME" Confusable With "PYRAT" for Distilled Spirits?

Patron Spirits opposed the application of Peter W. Noyes to register the mark IT'S PIRATE TIME for "distilled spirits" and for "retail store services featuring rum and rum based products...," claiming a likelihood of confusion with the registered mark PYRAT for "distilled spirits." Applicant Noyes argued that the term "pirate" or "pyrat" is weak and suggestive for rum, thanks to Stevenson's Treasure Island, which popularized the notion that rum is the drink of choice for pirates. How do you think this came out? Patron Spirits International, Inc. v. Peter W. Noyes, Opposition No. 91215615 (October 28, 2016) [not precedential].

The goods in the application and cited registration are identical. As to applicant's retail store services featuring rum products, rum is a distilled spirit, and the Board has often found retail store services to be related to the goods sold by those retail stores.

When the goods are identical, it is presumed that the travel through the same, normal channels of trade to the same classes of consumers. As to the services in the application, neither opposer's identification of goods nor applicant's recitation of services include any limitations as to channels of trade, and the goods and services are therefore presumed to move in all normal channels of trade for those goods and services and to be available to all classes of consumers. Accordingly the Board presumed that opposer's distilled spirits may be sold through retail outlets like applicant's and to the same consumers.

Turning to the marks, the word "pyrat" is an alternative spelling of "pirate," according to the Oxford English Dictionary. [More like a misspelling to me - ed.]. The Board concluded that the commercial impressions of IT'S PIRATE TIME and PYRAT are "quite similar in that the dominant term in Applicant's mark is the same as Opposer's mark and consumers could perceive Applicant's mark as a reference to Opposer's goods, exclaiming that it is time for Opposer's PYRAT, which would likely be pronounce as 'pirate.'" Or consumers could perceive applicant's mark as a variation of opposer's mark, or a slogan developed by opposer.

The Board concluded that the relatively minor dissimilarities in sight and sound are outweighed by similarities in connotation and commercial impression, and this du Pont factor weighs in favor of opposer.

Applicant urged that the term "pirate" or "pyrat" is weak and suggestive because it is often associated with rum. A number of websites use the term in reference to rum, but the Board was not moved. A number of the references involved foreign brands not apparently sold in the USA, while most of the others are recipes that incorporate "pirate" in the name or are discussions of pirates drinking rum.

Applicant also pointed to two registrations: PIRATE AND PARROT & Design for rum, and PIRATES OF THE MISSISSIPPI for distilled spirits. However, two registrations are not enough to show that opposer's mark is diluted or weak. The word "pirate" or "pyrat" may be suggestive of rum, but it is not so weak as to merit only a limited scope of protection.

And so the Board found confusion likely and it sustained the opposition.

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Text Copyright John L. Welch 2016.