TTABlog Test: Is EVERWILD For Distilled Spirits Confusable With EVERCLEAR for Alcoholic Beverages?
Luxco, Inc. opposed applications to register EVERWILD (in standard form) and
EVERWILD SPIRITS & design, both for "distilled spirits," claiming likely confusion with its registered mark EVERCLEAR for alcoholic beverages except beer. The Board found the involved goods to be legally identical, but what about the marks? How do you think This came out?
Luxco, Inc. v. Everwild Spirits, LLC, Opposition No. 91268045 (March 24, 2023) [not precedential] (Opinion by Judge Thomas W. Wellington).
The Board observed that "[t]he legal identity of the goods and their channels of trade and classes of purchasers weighs heavily in favor of finding a likelihood of confusion."
Turning to the strength of the cited mark, the Board noted that because EVERCLEAR is registered on the Principal Register, it is presumed to be inherently distinctive. However, the Board found that the mark has "some conceptual weakness due to its suggestive meaning." Commercial strength, however, was a different story. Based on one hundred years of use, impressive sales figures, and high brand recognition, the Board found the mark to be "very well-known and a commercially very strong mark and thus entitled to a broad scope of protection."
Comparing the marks, the Board concluded that "[t]he shared prefix EVER renders the marks similar to one another in sight and sound," and it noted "the dearth of evidence of others using an EVER-formative mark in connection with distilled spirits or wine." The differences in the marks "weighs somewhat in favor of finding confusion likely." [somewhat? - ed.]
Balancing the DuPont factors, the Board found confusion likely and it sustained the opposition.
Read comments and post your comment here.
TTABlogger comment: I don't buy it. Note that Luxco did not offer a likelihood of confusion survey.
Text Copyright John L. Welch 2023.
posted by John L. Welch @ 3/29/2023
9 comments
9 Comments:
The applicant attempted to offer a "brand survey" but it was inadmissible. Apparently it was not a likelihood-of-confusion survey.
Got it. So... "Ever+[anything non-distinctive]" is out for alcohol. Defend those big brands USPTO! (ugh)
More like "EVER+[anything]" is out for alcohol.
Decisions like this one embolden the existing big brands to oppose, oppose, oppose, and they make selection of marks more difficult for new market entrants.
Seems like the PTO is getting more out of the business of issuing registrations, and more into the business of refusing registration. Had EVERWILD come to me, I would have issued a clearance opinion.
I always thought that "everclear" was generic for nearly pure alcohol (90%+). I had no idea it was brand name.
Sounds UNCLEAR to me. Something WILD happened in the presentation of the case no doubt.
I wonder if the nature of the products and their tendency to increase confusion is a factor.
>>>More like "EVER+[anything]" is out for alcohol.
Seems like a few wine brands have made it through-- EVEREARTH (reg. 6697245), EVER OCEAN (reg. 6721944), and EVERMORE (reg. 4877389). That just adds to the confusion as to why EVERWILD was refused, especially for wine. Maybe filing for both "wine; distilled spirits" doomed them.
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