Wednesday, October 07, 2020

TTABlog Test: Are Coffee and Hard Cider Related for Section 2(d) Purposes?

The USPTO refused to register the mark BEAN BLOSSOM for "coffee, but not including alcoholic beverages," finding a likelihood of confusion with the registered mark BEANBLOSSOM for "hard cider." Applicant Cooper Moon argued that the space in its mark creates a different cadence from the cited mark, that the products differ in nature (one being a depressant, the other a stimulant), and that pairs of third-party registrations for marks covering coffee and beer show that in this field confusion between identical marks is unlikely. How do you think this came out? In re Cooper Moon Coffee LLC, Serial No. 88064160 (September 29, 2020) {not precedential] (Opinion by Judge Elizabeth A. Dunn]. 

The Marks: As to the marks, the Board rejected applicant's "cadence" argument, Both marks are comprised of ordinary words with a recognizable pronunciation, and applicant offers no explanation why they would be pronounced differently." Moreover, the cited mark is in standard characters and could be displayed as BeanBlossom. 

Likewise, the Board rejected the argument that the marks have different connotations. According to applicant, "Registrant's Mark for BEANBLOSSUM (sic) primarily refers to geographic landmarks and areas that are proximate to the owner's facilities." The Board pointed out that collateral attacks on a cited registration are not allowed. 

The Board found that BEANBLOSSOM is a strong mark entitled to a normal scope of protection. It concluded that the marks are "essentially identical."

The Goods: Because the marks are essentially identical, a lesser degree of similarity between the goods is necessary to support a finding of likelihood of confusion: there needs to be only a "viable relationship between the goods." The Board acknowledged the differences between coffee and hard cider.

More specifically, we note that hard cider is an alcoholic beverage, that alcoholic beverages include ethanol, one of the world’s most widely used drugs, and acts as a depressant; while coffee has high concentrations of caffeine, which is the world’s most widely consumed psychoactive drug, and acts as a stimulant. *** In comparison to all beverages, many of which do not include drugs, we find the fact that hard cider and coffee are beverages which include drugs creates a relationship between them which supports a finding of likelihood of confusion.


Examining Attorney Dezmona J. Mizelle-Howard submitted four third-party registrations that cover both coffee or coffee-related beverages and hard cider. Articles from third-party websites showed that coffee may be a component of hard cider. As to applicant's third-party registrations, they concerned coffee and beer, not coffee and hard cider. The record included evidence that hard cider and coffee "overlap in appealing to Millennial consumers, to those interested in locally-sourced beverages or the environmental impact of beverages."

In view of the evidence that hard cider and coffee both include drugs and are best consumed by adults, that hard cider can include coffee and is registered under the same mark as coffee, that a segment of consumers for both products focus their purchasing decisions on locally-sourced beverages or the environmental impact of beverages, and because they share overlapping channels of trade and consumers, we find that these DuPont factors also weigh in favor of finding a likelihood of confusion.

The Board concluded that confusion is likely, and so it affirmed the refusal to register.

 
Read comments and post your comment here.

TTABlogger comment: Not very convincing, I think. 

Text Copyright John L. Welch 2020.

12 Comments:

At 7:48 AM, Anonymous Anonymous said...

"Beverages which include drugs"? Really? We need a judicial equivalent of WYHA, for statements that you're impressed a judge made with a presumably straight face.

Plus, we know they're related because they're both marketed to millennials (er, like pretty much every product category aside from denture cream, at this point, but let's ignore that).

Also, evidence that similar marks can coexist on cider and beer is irrelevant, because beer and cider are so dissimilar that this doesn't matter (despite everything the Board is saying about cider also fitting beer).

It feels like the Board could save a lot of time and energy by just admitting that it's pretty close to a per se rule that all beverages are related.

 
At 9:26 AM, Blogger Unknown said...

Is anyone else bothered by the defective logic persistently employed by the Examining Attorney and the TTAB in decisions like this? Concluding that the goods are similar because of a few examples of registrations that include both coffee or coffee-related beverages and hard cider is an inductive reasoning fallacy. Four registrations are are not enough registration examples to warrant this conclusion, and worse yet, the examples were specially selected by the Examining Attorney to produce this conclusion. I bet that if we looked at all active registrations that include coffee or coffee-related beverages in their descriptions and then searched among these registrations for mentions of hard cider, the vast majority of registrations mentioning the former would not mention the latter. We could the same to find all of the active registrations that mention hard cider but not coffee or coffee related beverages. This strongly suggests that consumers are far more likely to not perceive coffee or coffee-related beverages to be related to hard cider. The same comments apply to a proferred small number of third party websites that might mention both coffee or coffee-related beverages and hard cider. Surely there are many more websites that mention only coffee or coffee-related beverages, or only hard cider, but not both. If the Examining Attorney submits four registrations mentioning both coffee or coffee-related beverages and hard cider, and a few websites mentioning both kinds of goods, but the applicant replies with much more evidence to the contrary - 30 registrations that mention coffee or coffee-related beverages but not hard cider, plus 30 registrations that mention hard cider but not coffee or coffee-related beverages, plus 60 websites that mention one type of goods by not the other, the great weight of evidence favors the applicant and the applicant should win on this related goods factor, right?

 
At 10:13 AM, Anonymous Anonymous said...

Ouch, let's just be grateful the opinion isn't precedential.

 
At 12:18 PM, Anonymous Anonymous said...

I love that I have to try to explain to clients that things like hard cider and coffee are too related to co-exist.

 
At 1:07 PM, Anonymous Anonymous said...

I don't know whether the Board members are working from home, but I do know this opinion was mailed in.

 
At 1:20 PM, Anonymous Anonymous said...

I don't disagree with the previous comments. IMO the takeaway is that if your mark is identical to a prior mark, and the marks are strong (i.e., not descriptive or suggestive), then your associated goods/services had better not be anywhere near the g/s of the prior mark. A sliver of alleged overlap was all it took here.

 
At 1:30 PM, Anonymous Paul Reidl said...

Good grief. Talk about decisions that do not reflect the real world! Does any consumer really believe that cider and coffee originate from the same source?

 
At 3:11 PM, Anonymous Anonymous said...

Right - is the questions whether confusion likely or possible? Here, it may be possible but is not likely.

 
At 7:07 PM, Anonymous Bob Cumbow said...

the fact that a handful of companies may have registered the same mark for both cider and coffee in no way establishes that consumers are likely to assume that the coffee and the cider come from the same company. But what bothers me is that neither the parties nor the Board made in mention of the fact that the cider labels have OLIVER on them in lettering far bigger than BEAN BLOSSOM. Why didn’t this come up in the arguments or the Board’s opinion?

 
At 9:38 AM, Anonymous Anonymous said...

@ 9:26 AM - What you sketched out is not a flaw in the examining attorney's reasoning, but the applicant's failure to rebut. If the applicant had done what you suggest, they may well have gotten their registration. For an example of someone doing exactly that, see In re Coors Brewing Co., 343 F.3d 1340, 1346 (Fed. Cir. 2003). Yes, that takes a lot of work. But where is it written that all responses to office actions are supposed to be cheap and easy? Most are, but some cases are just harder than others. That's just the way it is.

 
At 11:45 AM, Blogger John L. Welch said...

Bob: the Board will look only at the mark as registered regardiess of how it actually appears in the marketplace.

 
At 11:02 PM, Anonymous Jovan said...

Paul: I agree - all beverages are related, no matter what the real world looks like....

 

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