TTABlog Test: Is DRYLANDS BREWING COMPANY for Beer and Restaurant Services Confusable with DRYLANDS for Wine?

The USPTO refused to register that mark DRYLANDS BREWING COMPANY & Design for "beer" and for "restaurant services, including sit-down service of food and take-out restaurant services; taproom services featuring beer brewed on premises” [BREWING COMPANY disclaimed], finding confusion likely with the registered mark DRYLANDS for wine. On appeal, applicants argued that  DRYLANDS BREWING COMPANY is a unitary term engendering a "distinct commercial impression that is independent of the constituent elements.” Furthermore, DRYLANDS BREWING "brings to mind beer," whereas "Registrant’s Mark presents no commercial impression, certainly not one of a liquid." How do you think this came out? In re Arreola Francisco Andres and Daniel Torres, Serial No. 97174704 (October 26, 2023) [not precedential] (Opinion by Judge Jennifer L. Elgin).

Beginning with the strength of the cited mark, the Board noted the lack of evidence that "drylands” has any meaning or suggestive connotation in connection with wine, and so the Board found the mark DRYLANDS to be arbitrary for wine. As to commercial strength, the applicants pointed to five uses of the term "dryland" in connection with wine, but only two of the uses were in the United States, "and the probative value of these is diminished because the goods are mead, whiskey, and distilled spirits, and not 'wine.'" Furthermore, "only five third-party uses would fall well short of the volume of evidence found convincing in Juice Generation . . . and Jack Wolfskin . . . ." The Board concluded that applicants failed to demonstrate any weakness in the cited mark.

Comparing the marks, the Board found DRYLANDS to be the dominant portion of applicants' mark, rejecting the argument that the design component of the mark, described as a “partial Zia symbol” (purportedly a recognized symbol of the State of New Mexico), would distinguish the marks. Applicants' assertion that DRYLANDS BREWING COMPANY would be perceived as a unitary term was unsupported by any record evidence.

With regard to the relatedness of the involved goods and services, Examining Attorney Christopher M. Law made of record 13 third-party, use-based registrations identifying both types of goods. Under Albert Trostel and Mucky Duck, such registration evidence suffices to show the required relatedness. In addition, Mr. Law submitted Internet evidence showing that thirteen third-party wineries and breweries offer wine and beer under the same mark. 

The Board was not moved by applicants’ argument that confusion is not likely merely because they currently are “incapable of producing wine or of selling Registrant’s wine or, for that matter, anyone’s wine” due to regulations in New Mexico. "Consumers are not aware of regulations pertaining to alcohol, nor is the identification of goods and services in Applicants’ mark limited to selling beer in New Mexico." Furthermore, choosing to look at extrinsic evidence, the Board noted that applicants' menu actually lists "sangria," which is made with wine.

Since the application and cited registration contain no restrictions as to channels of trade or classes of purchasers, the Board must presume that the identified goods travel in the ordinary channels of trade for such goods. Here, the Board "must may (sic!) not consider extrinsic evidence of actual use." The Board observed that "[i]t is common knowledge that beer and wine are frequently sold in the same stores to the same class of purchasers, namely, adult members of the general public."

As to its services, Applicants argued that because there is no per se rule that restaurant services and wine are related under the second DuPont factor, the USPTO must show “something more” to demonstrate relatedness. The Board pointed to ten third-party registrations indicating that “wine” and “restaurant services, including sit-down service of food and take-out restaurant services,” "often are offered by the same entity under the same mark." [often? - ed.]. In addition, the Examining Attorney "introduced excerpts from ten third-party websites purporting to show that numerous entities use the same mark for wine and restaurant services." [numerous? -ed.]. The Board therefore found the required “something more” to establish the relatedness of the involved goods and services. 

Concluding that confusion is likely, the Board affirmed the refusal to register.

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Text Copyright John L. Welch 2023.