Tuesday, July 14, 2020

TTABlog Test: Is TEQUILUSA for Alcoholic Beverages Confusable with the TEQUILA Certification Mark?

The Board made quick work (an opinion of a mere 11 pages) of this opposition to registration of the mark TEQUILUSA for “alcoholic beverages, except beer," finding a likelihood of confusion with the registered certification mark TEQUILA for “distilled spirits, namely, spirits distilled from the blue tequilana weber variety of agave plant. The Board declined to reach opposer's claims of deceptiveness under Section 2(a) and deceptive misdescriptiveness under Section 2(e)(1). Consejo Regulador del Tequila, A.C. v. George Michalopoulos and Tasos Georgas, Opposition No. 91244395 (July 6, 2020) [not precedential] (Opinion by Judge Peter W. Cataldo).

Case law establishes that classification as a certification mark "has very little effect on our determination as to whether or not there is a likelihood of confusion." The Section 2(d) test is the same: the du Pont analysis, applied from the standpoint of the users of the certification mark. In re Accelerate s.a.l., 101 USPQ2d 2047, 2049 (TTAB 2012). 

The Goods: The Board found that applicant's broadly identified "alcoholic beverages except beers," encompass the more narrowly identified "distilled spirits, namely, spirits distilled from the blue tequilana weber variety of agave plant" provided by users of the certification mark. Since the goods are legally identical, the Board must presume that they travel in the same trade channels to the same classes of purchasers.

The Marks Because the goods overlap, a lesser degree of similarity between the marks is needed to support a finding of likely confusion. The Board found the marks to be "highly similar" in appearance. The pronunciation of the marks will be similar due to the construction of the two marks. In short, the marks give "the impression of being minor variations of one another." As to meaning, applicant's mark "suggests a subset of Opposer's TEQUILA emanating from or associated with the United States of America." The Board found the marks to be "more similar than dissimilar."

Balancing the relevant DuPont factors, the Board found confusion likely and so it sustained the opposition.

Read comments and post your comment here.

TTABlogger comment: You may recall that in 2017, the Board dismissed an opposition to registration of TEQUILA as a certification mark, finding that Opposer Luxco failed to prove its claims of its claims of genericness, lack of legitimate control, and fraud. [TTABlogged here].

Text Copyright John L. Welch 2020.


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