EAGLE PARK DISTILLING for Alcoholic Beverages Not Confusable with EAGLE RARE for Bourbon Whiskey, Says TTAB

In a 50-page opinion, the Board dismissed this opposition to registration of the marks EAGLE PARK DISTILLING for "distilled spirits; alcoholic beverages, except beer," and EAGLE PARK BREWING COMPANY for "alcoholic beverages, namely beer," finding confusion unlikely with Sazerac's registered marks EAGLE RARE for "bourbon whiskey" and the design mark shown below for "whiskey." The dissimilarity of the marks underpinned the dismissal as to the first challenged mark and, combined with the lack of proof of relatedness of beer and whiskey, also underpinned the dismissal as to the second mark. Sazerac Brands, LLC v. Eagle Trace Brewing Company LLC, Opposition No. 91272260 (August 22, 2024) [not precedential] (Opinion by Judge Mark Lebow).

The Marks: The Board found the word EAGLE to be the dominant element in the EAGLE RARE mark. However, in applicant's marks, EAGLE is used as an attributive noun modifying the noun PARK "such that the combination of EAGLE and PARK conveys the idea of a geographic place, real or imagined where one might or might not see an eagle." Likewise, the eagle design mark and applicant's marks have "distinct overall connotations and commercial impressions." 

The Board concluded that the first Dupont factor "strongly" favors a finding of no likelihood of confusion, and indeed was dispositive as to the EAGLE PARK DISTILLING mark.

Survey Evidence:With respect to the EAGLE PARK DISTILLING mark, Opposer Sazerac submitted the results of a Squirt-style survey based on the EAGLE RARE mark, resulting in the following conclusion: “The overall net rate of confusion, using the Control Group rate to net out ‘survey noise’ or guessing, is 18.7 percent.” The Board, however, agreed with the applicant that a number of defects in the survey diminished its probative value to the extent that the Board "cannot rely on it with any confidence. " In sum:

For the various reasons discussed, including but not limited to our finding that (i) the Squirt-style survey format is more conducive where an opposer’s mark is not alleged to be commercially strong; (ii) the survey has significant design flaws, including with respect to—for example—the brands chosen for the array, and the universe of participants; (iii) the low net confusion rate, and, perhaps most significantly, (iv) the survey fails to sufficiently approximate market conditions, we are unable to infer that there is a likelihood of confusion between Opposer’s EAGLE RARE mark and Applicant’s EAGLE PARK DISTILLING mark based on the survey.

Beer and Whiskey: The Board noted once again that there is no per se rule that all alcoholic beverages are related for Section 2(d) purposes. "Even though whiskey and beer (and other alcoholic beverages) have been found related in other cases, we must decide the outcome of this proceeding, just as we do with all cases, based on the facts and evidence submitted in this case."

Sazerac pointed to applicant as an example of a company that sells both beer and whiskey, but the Board was unimpressed: "[O]ne example of the same company using two different marks (EAGLE PARK DISTILLING and EAGLE PARK BREWING COMPANY) for different alcoholic beverages does not, itself, suffice to establish relatedness of the goods." Sazerac simply failed to prove that beer and whiskey are related for purposes of finding a likelihood of confusion, and so the second DuPont factor favored the applicant.

Finding that likelihood of confusion is "even more remote" with respect to applicant's mark EAGLE PARK BREWING COMPANY for beer, the Board dismissed the opposition.

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TTABlogger comment: The Board was quite critical of the Squirt form of survey, not just for this case, but generally.

Text Copyright John L. Welch 2024.