TTABlog Test: Are These Two "CANNONBALL" Marks Confusable for Beer?

The USPTO refused to register the mark CANNONBALL CREEK BREWING COMPANY GOLDEN, COLORADO and Design, as shown below, for “beer” [BREWING COMPANY GOLDEN, COLORADO disclaimed], finding the mark likely to cause confusion with the registered mark CANNONBALL DOUBLE IPA for “ale; beer; brewed malt-based alcoholic beverage in the nature of beer” [DOUBLE IPA disclaimed]. The goods are legally identical and the Board must presume that the overlapping goods travel in the same trade channels to the same classes of consumers. What about the marks? Too close? How do you think this came out? In re Hutchinson and Stengl, Serial No. 86809909 (August 9, 2019) [not precedential] (Opinion by Judge George C. Pologeorgis).

Of course, when the goods are identical, a lesser degree of similarity between the marks is necessary to support a finding of likely confusion. The Board found the marks to be similar in appearance and sound to the extent that the word CANNONBALL is the first literal element in the marks. Often it is the first part of a mark that is most to be impressed upon the mind of the consumer and remembered. "However, that general rule is not applicable here. In this case, the word CANNONBALL is likely to be read in conjunction with the word CREEK, that word being visually the largest element in Applicant’s mark."

Although applicant's mark contains a prominent design element, it is the verbal portion of the mark that is most likely to indicate the origin of the goods. It is the verbal portion that consumers will use in referring to or ordering the goods.

The disclaimed portion of each mark is less significant because of its descriptive nature. Therefore, the dominant portion of applicant’s mark is CANNONBALL CREEK and the dominant element of the cited is CANNONBALL. Nonetheless, the Board found the connotations and commercial impressions of the marks to be "quite dissimilar" because of the presence of the word CREEK in applicant's mark.

The circumstances of this case are very similar, if not identical, to those in Champagne Louis Roederer S.A. v. Delicato Vineyards, 148 F.3d 1373, 47 USPQ2d 1459 (Fed. Cir. 1998). In that case, the Federal Circuit affirmed the Board’s holding that the second word in applicant’s mark CRYSTAL CREEK served to create a totally different commercial impression from the one created by opposer’s mark CRISTAL when the marks were contemporaneously used on wine.

CANNONBALL CREEK evokes the name of a particular waterway or stream. This "wave" design in applicant's mark reinforces that meaning and commercial impression, as does the relatively larger size of the word CREEK. The cited mark, CANNONBALL, conveys the impression of something fired from a cannon.

The Board concluded that "the differences in connotation and commercial impression between the marks outweigh their similarities and are therefore sufficient to distinguish the marks so that confusion between the marks is not likely."

And so the Board reversed the refusal to register.

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TTABlog comment: I guess adding the word CREEK is a ticket to registration.

Text Copyright John L. Welch 2019.