Thursday, August 01, 2019

TTABlog Test: Is "LIQUOR SLINGER DISTILLING" for Liquor Confusable with "SLINGER" for Shot Glasses?

The USPTO refused to register the mark LIQUOR SLINGER DISTILLING for "liquor" [LIQUOR and DISTILLING disclaimed], finding the mark likely to cause confusion with the registered mark SLINGER for "drinking glasses; shot glasses." Applicant James argued that the goods are sold in different channels of trade, and that the word SLINGER has differing meanings in the two marks. How do you think this came out? In re Ernest Everett James, Serial No. 87905550 (July 30, 2019) [not precedential] (Opinion by Judge Robert H. Coggins).

The Goods: Examining Attorney Caroline L. Moran maintained that it is common for a distillery to also sell drinkware, basing that contention on Internet evidence from third party websites. The Board found that this evidence supports a finding that the goods are related and complementary, and that relevant consumers may expect liquor and glassware to be offered together from a single source.

The evidence also showed that liquor and shot glasses travel in some of the same channels of trade to some of the same classes of consumers. Applicant James contended that sales of liquor is tightly controlled through a highly regulated three-tier system, whereas glassware is sold in store selling home goods. The Board observed, however, that there are no limitations in the application or cited registration as to trade channels or consumers.

Specifically, there is no restriction in the cited registration limiting the channels of trade of drinking and shot glasses to “stores selling home goods” or limiting the classes of purchasers to people under 21 years of age or to those who do not drink or serve liquor.

The evidence demonstrated that liquor and glassware are commonly sold by the same entity (e.g., a distillery) to some of the same consumers, even if the "environment" might be tightly controlled.

The Marks: Consumers are less likely to focus on the generic, disclaimed terms in applicant's mark, and so SLINGER is the dominant portion of applicant's mark. James argued that the cited mark SLINGER "brings to mind an ancient soldier," whereas SLINGER in applicant's mark has the "commercial impression of a proprietor [sic] of liquor." However, he provided no evidence to support that argument.

The Board found that the term SLINGER is likely to have the same connotation and commercial impression in each mark, especially since the goods are complementary. "The consuming public, which is prone to shortening marks, could easily regard Registrant's mark SLINGER as a shortened version of Applicant's mark LIQUOR SLINGER DISTILLING."

Considered in their entireties, the marks are similar in appearance, sound, connotation, and commercial impression.

Conclusion: Finding confusion likely, the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: How about liquor and napkins? Liquor and coasters?

Text Copyright John L. Welch 2019.


At 9:50 AM, Anonymous Anonymous said...

How about liquor and toilets - they are used together frequently.

They need to put some restraints on the use of third party evidence. No third party evidence should be considered unless there's also some context provided. Examiner's will cite 5 related third party registrations, without any context. 5 out of how many? If there are 10,000 registrations that cover one of the goods/services and not the other, and 5 that cover both, isn't that relevant? Shouldn't the one citing the evidence have some obligation to put it in context?

At 10:00 AM, Anonymous Anonymous said...

What about liquor and kitchen cabinets, where one can often find both shot glasses and bottles of liquor?

At 2:17 PM, Anonymous Anonymous said...

Are you freaking kidding me? So disappointed in Coggins.

At 4:13 PM, Blogger Atomic40 said...

I was surprised to see that the Examiner did not attach to the Office Actions, 3rd party registrations that feature these goods. I found about 10.

At 6:00 PM, Blogger Catherine said...

I agree this decision goes too far. If the marks were identical then I think it would still be a stretch, but the marks are sufficiently different. Surely they know that "Liquor Slinger" is a colloquialism like "beer slinger?" So to me, LIQUOR SLINGER" is the dominant term in the applicant's mark (arguing away from isolating "SLINGER"), and that gives it a different (modern, sort of whimsical) commercial impression. Do they really think a consumer encountering "LIQUOR SLINGER DISTILLERY brand whiskey would think it had some connection to SLINGER brand glassware? That's a bit insane - it's like they are taking the technical elements of the test out of real life to come to a finding that probably would not be supported by surveying real people. Oh, TTAB, what's next?

At 3:58 AM, Anonymous Anonymous said...

As the comments indicate, the relatedness of alcohol and other goods is getting a little ridiculous, IMO. Cigars? Chocolate? REALLY?

At 3:16 PM, Anonymous Anonymous said...

Effective now, no more beer, wine, or liquor trademarks should ever be approved for publication.

They are all related to something that is already registered.

At 8:16 PM, Anonymous Mitchell Stabbe said...

Aspirin is a related product too!


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