TTABlog Test: Is RAILROAD RUM for Distilled Spirits Confusable with RAILROAD RED for Wine?

The USPTO refused to register the proposed mark RAILROAD RUM for "distilled spirits" (RUM disclaimed), finding confusion likely with the registered mark RAILROAD RED for "wines" (RED disclaimed). The Board found the marks to be confusingly similar, since they both are dominated by the word RAILROAD, the first and only distinctive word in each mark. But what about the goods? How do you think this came out? In re Wild West Spirits, LLC, Serial No. 90540784 (May 30, 2023) [not precedential] (Opinion by Judge Christen M. English).

Examining Attorney Olivia Lee submitted third-party website evidence showing that "some third-parties use the same mark to identify distilled spirits and wine." Applicant Wild West feebly criticized this evidence as “extrinsic," but the Board pointed out that evidence of third-party use of a single mark to identify both an applicant’s and registrant’s goods is commonly used to establish relatedness.

Wild West further asserted that the Examining Attorney introduced “a handful of cherry-picked” and “obscure” examples of relatedness, but the Board found that the evidence provided "a reasonable predicate supporting the Examining Attorney’s position on relatedness and shift[s] the burden to Applicant to rebut the evidence with competent evidence of its own."

Wild West also attacked the evidence as failing to demonstrate that “rye whiskey” and “red wine” are “regularly or predominantly sold” under the same marks. According to Wild West, "it is common knowledge that the vast majority of wine brands do not also sell rye whiskey or distilled spirits -- and vice versa, well known rye whiskey brands do not also sell red wines." However, as the Board pointed out, the application at issue is not limited to rye whiskey.

Lastly, Wild West asserted that the identified goods themselves are different, but the Board was not impressed. The issue at hand “is not whether purchasers would confuse the goods, but rather whether there is a likelihood of confusion as to the source of these goods"

Because neither the application nor the cited registration includes limitations as to trade channels or classes of purchasers, the Board must presume "that the involved goods move in all the normal channels of trade for such goods – liquor stores, bars, restaurants and online retailers – and flow to the same classes of purchasers. Moreover, the same third-party Internet evidence referenced above demonstrates that wine and distilled spirits may be encountered by the same classes of consumers under the same marks in at least one common trade channel – the websites and physical locations of wineries and distilleries, i.e., producers and sellers of wine and distilled spirits."

And so, the Board affirmed the refusal to register.

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TTABlogger comment: WYHA? Note that there is no per se rule that all alcoholic beverages are related. It just turns out that way.

Text Copyright John L. Welch 2023.