TTAB Test: Are Wine and Whiskey Related for Section 2(d) Purposes? And Where is Millbrook?

The USPTO, through Examining Attorney Jillian R. Cantor, refused registration of the mark MILLBROOK DISTILLERY (in standard character and design form) for whiskey [DISTILLERY disclaimed] on two grounds: likelihood of confusion with MILLBROOK for wine, and geographical descriptiveness under Section 2(e)(2). Applicant appealed. How do you think these came out? Do you think that all beverages are related for 2(d) purposes? Do you know where Millbrook is? In re Millbrook Distillery, LLC, Serial Nos. 85924732 and 8595455 (February 9, 2015) [not precedential].

Section 2(d): Third-party registrations covering whiskey and wine, coupled with Internet evidence that third parties operate both wineries and distilleries, many including "winery" and "distillery" in their names, convinced that Board that the goods are related. Moreover, they are sold in the same channels of trade to the same classes of consumers.

Applicant submitted evidence of third-party uses of MILLBROOK, but there was only one that concerned alcoholic beverages: a wine company in Windsor, Connecticut. But there was no proof that this trade name had received any public exposure, and in any case a single third-party use is not sufficient to show that consumers can distinguish between the two marks at issue.

Applicant conceded that wine may be purchased by ordinary consumers without much care, but it insisted that whiskey purchasers will exercise a higher degree of care. The evidence, however, showed that whiskey and wine may be sold in the same price range.

[A]lthough a whiskey aficionado may well have a favorite brand or want a particular taste and aroma, not everyone who purchases whiskey or wine will be that discriminating. People may not buy wine or whiskey for themselves, but may purchase it as a gift or, as previously stated, will want these beverages as supplies for a party, and therefore the aroma or taste of the product will not be important. Because we must assess the likelihood of confusion for all consumers of the goods, we find that wine and whiskey may be bought by ordinary purchasers who have no particular sophistication about the products, and who buy them without exercising great care.

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

Section 2(e)(2) The examining attorney submitted evidence showing that Millbrook is a village in Duchess County, New York, having a population of about 1400. She asserted that Millbrook is a "low-key version of the Hamptons" and is "one of the most affluent towns in New York State," and maintained that Millbrook is a "generally known geographic location" as required by the first prong of the Section 2(e)(2) test.

The Board was not convinced that Millbrook is not an "obscure location." "Simply because a place has a school or library or town hall or motel does not mean that the public is aware of the geographic location. If that were the case, no place could be considered obscure unless it literally did not contain any public buildings."

The website evidence, the  Board observed, did not show public exposure to Millbrook, but only that someone who knew of Millbrook and was looking for information about it would likely encounter these websites. The Wikipedia entry submitted by the examining attorney was unreliable due to certain inconsistencies.

In short, the PTO failed to meet its burden to show that Millbrook is the name of a place generally known to the public, and not remote or obscure. Therefore, the Board reversed the Section 2(e)(2) refusal.

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Text Copyright John L. Welch 2015.