Monday, November 23, 2015

SUGARLANDS DISTILLING COMPANY Not Geographically Descriptive of Moonshine, But Confusable with SUGARLAND CELLARS for Wine

The Board reversed a Section 2(e)(2) refusal of the mark SUGARLANDS DISTILLING COMPANY, ruling that the USPTO failed to prove the mark to be primarily geographically descriptive of "craft moonshine beverages" [DISTILLING COMPANY disclaimed]. But the Board affirmed a Section 2(d) refusal in view of the registered mark SUGARLAND CELLARS for wine [CELLARS disclaimed]. In re Sugarlands Distilling Company, LLC, Serial No. 85818277 (November 20, 2015) [not precedential].

Section 2(e)(2): To support a refusal under this section, the USPTO must first show that "the mark's primary significance is a generally known geographic location." The Examining Attorney contended that Sugarlands is a valley in the north-central Great Smoky Mountains, the location of a national park that features the "Sugarlands Visitor Center." Relying on a single Wikipedia entry (here), the Examining Attorney asserted that "the geographic location SUGARLANDS, while remote and obscure enough to conduct moonshining during the turn of the century, is not a location that is now so remote and obscure that consumers wouldn’t recognize it as a geographic location."

The Board was not impressed by the record evidence. "While the Wikipedia excerpt has probative value, without other evidence to support the proposition that consumers have been exposed to this term and are aware of its geographic significance, we cannot find that it is a generally known geographic location." The Board distinguished this case from In re New Merced, 85 USPQ2d 1614 TTAB 2007) [YOSEMITE BEER], where entries from multiple websites and reference works established that "Yosemite" is a well-known geographic region that is clearly not obscure or remote.

Section 2(d): The Board found that Applicant’s "craft moonshine beverages" are sufficiently related to Registrant’s "wine," that when sold under a "very similar mark," confusion is likely. The Board noted that "moonshine is defined as "smuggled or illicitly distilled liquor, especially corn liquor as illicitly distilled chiefly in rural areas of the southern U.S." and "intoxicating liquor; esp: illegally distilled corn whiskey." The Board presumed that applicant's goods are neither smuggled nor illicit, and it interpreted the identification of goods to mean "whiskey, including corn whiskey that is made from 80 percent corn mash."

The Board pointed out that there is no per se rule that all alcoholic beverages are related, but it noted that the CAFC and the Board "have repeatedly held various alcoholic beverages, including whiskey and wine to be related." The record contained evidence that several wineries also distill and sell various spirits, including whiskey.

The Internet evidence shows that there are a number of combination wineries and distilleries, and/or companies that produce both wine and spirits, including whiskey, and that these companies are located throughout the country, including New York, Iowa, Massachusetts and California. This evidence is sufficient for us to find that the goods are related.

Moreover the presumed trade channels for the involved goods overlap: liquor stores, bars and restaurants, and the alcoholic beverages sections of retail outlets, as well as onsite wineries/distilleries. Furthermore, the goods would be offered to the same general consumers.

As to the mark, the words SUGARLANDS and SUGARLAND dominate, since the additional wording in each mark is descriptive and has been disclaimed.

Applicant argued that confusion is impossible because the involved goods "cannot even be lawfully sold to the general public under the same roof" and "they are branded under distinguishable marks that explicitly say the products come from fundamentally different types of enterprises." There was no evidence,  however, to support the first point, and in any case the presumed channels of trade include liquor stores. As to the second point, the evidence included examples of wineries "being referenced as producers of distilled spirits or include in their name both words winery and distillery."

Finally, the Board found that the evidence did not show the term SUGARLANDS to be a weak formative. " While it is possible there may be some consumers in the United States that have heard of the SUGARLANDS and its connection with "moonshine," it could still be connected by
those consumers with Registrant’s mark SUGARLAND also located in Tennessee.

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

Read comments and post your comment here.

TTABlog comment: Compare the record evidence here regarding the relatedness of whiskey and wine with the evidence in the REUBEN'S BREWS case (here), including evidence that there are more than 10,5000 wineries and breweries in the United States, only a few of which produce both beer and wine at the same location, leading that Applicant to argue that the overlap was statistically insignificant.

Text Copyright John L. Welch 2015.


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