TTABlog Test: Is TABLEAU for Wine Confusable with TABLEAU for Bar Services?

The USPTO refused registration of the mark TABLEAU for wine, finding confusion likely with the identical mark registered for "restaurant and bar services; cocktail lounges." Applicant Caymus Vineyards argued that the Office failed to prove the "something more" required to establish relatedness between these goods and services, and further argued that, of the 600,000 restaurants in the U.S., the Office's evidence of third-party overlapping use constituted only “25 ten-thousands of one percent, or fewer than one in 10,000." How do you think this came out? In re Caymus Vineyards, Serial No. 97040804 (February 22, 2024) [not precedential] (Opinion by Judge Wendy B. Cohen).

The Board ruled that there was no need to show "something more" to support the relatedness of the goods and services here because there is "an inherent relationship between Registrant’s bar services and cocktail lounges and Applicant’s wine." The Board noted that "inherent relatedness often exists when the services in question include or center on the sale of the particular goods in question."

Moreover, even if "something more" were required, that standard is met here. The cited mark TABLEAU is arbitrary and inherently distinctive. In addition, the evidence established that restaurant services and wine may be advertised by the same source under the same mark and offered at the same location, and that the customer bases for wine and restaurant services overlap.

Examining Attorney Scott Bibb established that wine and bar services are often offered by the same entity under the same mark by submitting eleven third-party registrations, more than thirty webpages, and eight internet articles. Caymus asserted that this was not a robust collection of evidence, but the Board was unmoved.

The fact that the Examining Attorney did not submit more does not detract from the fact that this evidence reveals that wine and restaurant services are offered by the same party under the same mark. The Court of Appeals for the Federal Circuit and Trademark Trial and Appeal Board have long recognized that "the PTO is an agency of limited resources" for obtaining evidence when examining applications for registration; the practicalities of these limited resources are routinely taken into account when reviewing a trademark examining attorney’s action.

With respect to the argument based on the number of restaurants and drinking places in the United States, Caymus relied on an Internet printout from bls.gov. The Board deemed that information of limited value because it constitutes hearsay. Moreover, that printout is not evidence of the number of restaurants "that do or do not offer wine or whether the wine is labeled with the same trademark."

And so, the Board affirmed the Section 2(d) refusal.

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TTABlogger comment: So, you shouldn't name a bar or lounge without first checking for wine trademarks, and vice versa.

Text Copyright John L. Welch 2024.