Friday, September 18, 2020

TTABlog Test: Is GNARLED ORCHARD for Hard Cider Confusable With GNARLY HEAD for Wine?

Delicato Vineyards opposed this application to register the mark GNARLED ORCHARD for hard cider, claiming a likelihood of confusion with its registered mark GNARLY HEAD for wines. Applicant Strother maintained that the goods are fundamentally different, that wine drinkers are increasingly sophisticated, and the the marks differ in connotation and commercial impression. How do you think this came out? Delicato Vineyards v. Philip Carter Strother, Opposition No. 91244351 (September 16, 2020) [not precedential] (Opinion by Judge David K. Heasley).

Channels of Trade: Although wine and cider are different goods, the question is whether consumers would mistakenly believe that the involved goods many emanate from the same source. The evidence showed that Applicant Strother sells both wine and hard cider. Neither the application nor opposer's registration contained any limitations as to channels of trade. The Board concluded that "the DuPont factors concerning the similarity or relatedness of Applicant’s and Opposer’s goods, classes of consumers, and channels of trade weigh in favor of finding a likelihood of confusion."

Consumer Care: Strother claimed that due to the enormous growth in sophistication of wine buyers, confusion is not likely between an apple cider and a grape wine. However, as the Board previously pointed out, the question is source confusion, not product confusion. The consuming public consists of  purchasers of alcoholic beverages, and "there is no reason to believe that these customers will be particularly sophisticated." Moreover, the Board must consider the least sophisticated purchaser. [What it the purchaser is so unsophisticated that he or she can't tell wine from hard cider? - ed.]. There are no limitations in the application or registration regarding price or quality. And consumers often order these beverages by the glass with little opportunity to carefully inspect the brand names.

Strength of Opposer's Mark: Delicato's sales and advertising figures were substantial, and it has successfully expanded its brand in fifteen years across the entire country, from its original zinfandel to a variety of varietals. The Board found that Delicato had achieved a "high degree of commercial strength" under the GNARLY HEAD brand name, and therefore is entitled to "'stronger' protection—protection over a wider range of related products and services and variations on visual and aural format."

The Marks: The Board found that "GNARLY overlaps GNARLED in sight, sound, connotation, and commercial impression." Moreover, "Opposer’s GNARLY encompasses both meanings: dangerous and twisted with age. *** Thus, the words GNARLED and GNARLY overlap in connotation and commercial impression. They appear prominently as the first word in each mark."

Given this marked similarity in the marks’ dominant lead components, the differences in their suffixes, HEAD and ORCHARD, do not suffice to distinguish them. According to Opposer, GNARLY HEAD refers to the twisted heads of aged vines, such as those depicted in its advertisement .... According to Applicant, GNARLED ORCHARD refers to an orchard that is weathered and bent. Both parties seek to evoke a similar impression: twisted, fruit-bearing plants from which their fermented alcoholic beverages are made.

In view of the noisy and sometimes chaotic conditions in bars and restaurants, where beverages are often order by the glass without an opportunity to see the label, minor differences in sound may go undetected. Consumers who do discern the differences in the marks may believe that one mark is a slight variation of the other.

Conclusion: Balancing the relevant duPont factors, the Board found confusion likely and it sustained the opposition.

Read comments and post your comment here.

TTABlogger comment: Did you guess correctly? Do you think, in the real world, there is any likelihood of confusion here? 

Text Copyright John L. Welch 2020.


At 10:49 AM, Anonymous Anonymous said...

Wait, what about Reg. Nos. 2826938 and 3366876?

At 12:40 PM, Anonymous Anonymous said...

In TTAB-land, this would seem like a no-brainer. In the real world, however, I think the likelihood of confusion is probably pretty low. When people want a cider, they will get in it a bottle (at a bar) or a 4 or 6 pack at the grocery store. When people want a wine they will get it in a glass or a 750 ml bottle. I just don't see that people will buy a cider thinking it is made by a winery because it has a similar first word in the trademark. I know that the wine has been around for a decade or so, but it is not "famous" or "well-known."

As for the example about noisy bars, I think that the fact that a bartender has trouble hearing through the din does not mean that he or the customer are confused as to their choice.


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