Friday, March 26, 2021

TTABlog Test: Is LOGGERHEAD DISTILLERY for Distilled Spirits and Distillery Services Confusable With LOGGERHEAD LANDING for Restaurant and Bar Services?

The USPTO refused to register the mark LOGGERHEAD DISTILLERY in standard character and design form (shown below) for "distilled spirits" and "alcohol distillery services" [DISTILLERY disclaimed], finding confusion likely with the registered mark LOGGERHEAD LANDING for "bar and cocktail lounge services; café services; restaurant services." Applicant contended that the cited mark is suggestive of the registrant's services, which are offered at a pool bar/restaurant situated inside a beach resort, that the terms DISTILLERY and LANDING are so different as to distinguish the marks, that its customers are discriminating, and that no actual confusion has occurred. How do you think this appeal came out? In re Loggerhead Distillery, LLC, Serial Nos. 88441155 and 88452674 (March 24, 2021) [not precedential] (Opinion by Judge David K. Heasley).

Relatedness: Third-party website evidence convinced the Board that consumers have been widely exposed to distillery services, distilled spirits, and restaurant services offered under the same mark. In addition, media articles discussed "the growing trend of restaurant-distilleries." [Hearsay? - ed.].

Applicant contended that "something more" than the mere fact that distilled spirits could be served at registrant's restaurants, is required to show the relatedness of restaurant services and distilled spirits. Nope. Not when the relatedness is well-known or generally recognized, said the Board. 

On this evidentiary record, the relationship “is the opposite of obscure, unknown, or generally unrecognized, [and] the relevant line of case law holds that confusion may be likely to occur from the use of the same or similar marks for goods, on the one hand, and for services involving those goods, on the other.” In re Country Oven, 2019 USPQ2d 443903, at *13.

The fact that registrant offers its services only at a pool bar is irrelevant, since there is no limitation in the cited registration as to channels of trade. "The respective goods and services can be expected to flow through the same or similar channels of trade, as the website evidence demonstrates." "And they would flow to some of the same classes of consumers—in this case, ordinary adult consumers of alcoholic beverages."

The Marks: The Board agreed with Examining Attorney Angela Duong that the word LOGGERHEAD is the dominant element of all of the marks. Moreover, consumers are likely to shorten applicant's mark when ordering a "LOGGERHEAD." The words DISTILLERY and LANDING make "little or not difference" in the commercial impressions of the marks. “[I]f the dominant portion of both marks is the same, then confusion may be likely notwithstanding peripheral differences." And so this DuPont factored weighed against the applicant.

Sophistication, etc.: As to customer sophistication, the applications and cited registration are unrestricted as to price or quality, and "there is no reason to infer that the consumers of the alcoholic beverages will be particularly sophisticated, discriminating, or careful in making their purchases." [Probably the more they consume, the less discriminating - ed.]. The Board considered this factor to be neutral. [Seems like this should favor affirmance - ed.].

Applicant cited seven third-party registrations for marks containing the word LOGGERHEAD, but without evidence regarding extent of use of the marks, the probative value of this evidence was minimal. Moreover, six of the seven were for unrelated goods and services.

Finally, as to the lack of confusion evidence, the Board once again pointed out that this has" little probative weight in the likelihood of confusion analysis, inasmuch as the Board in such cases generally has no way to know whether the registrant likewise is unaware of any instances of actual confusion, nor is it usually possible to determine that there has been any significant opportunity for actual confusion to have occurred."

Conclusion: The Board concluded that confusion is likely, and so it affirmed the Section 2(d) refusal.

loggerhead sea turtle

Read comments and post your comment here.

TTABlogger comment: This decision leaves a bad taste in my mouth. In the real world, what are the chances of consumer confusion between these marks?

Text Copyright John L. Welch 2021.


At 8:18 AM, Blogger Gene Bolmarcich, Esq. said...

I'm all for reality also, John. I would support legislation to require every TTAB case to require a well-designed consumer survey and make that the determining factor (so we wouldn't even need TTAB judges). These formulaic decisions are getting boring.

At 9:43 AM, Blogger IT JUST DOESN'T MATTER said...

Zero likelihood of confusion - like pretty much 90% of TTAB Trademark World decisions.

At 10:45 AM, Anonymous Catherine C said...

I think the TTAB missed the mark on this one. For one thing, the alliterative quality of LOGGERHEAD LANDING is missing from LOGGERHEAD DISTILLERY, so I don't agree that the words LANDING and DISTILLERY are insignificant to the overall commercial impression. I think the TTAB is giving way too much weight to the word LOGGERHEAD and glossing over this part of the analysis without giving it adequate reflection. I do see some relatedness of distillery services and bar services (alcohol), but I am not convinced they are sufficiently related that confusion would be likely in real life in this case. I mean really, how many restaurants have house-brand spirits? How likely is it that a patron of the restaurant would see Applicant's product in a store and believe it's from the restaurant? I don't buy it.

At 11:09 AM, Blogger Gene Bolmarcich, Esq. said...

it's so hard to explain Trademark World to my clients. They assume that Real World applies to the registration process

At 12:58 PM, Blogger Barbara said...

This seems like the end of the "something more" test for alcohol v. restaurants. Very unfortunate.

At 2:57 PM, Anonymous Anonymous said...

In the TTAB world, where everything can be related to everything, the 7 third-party registrations cited by Applicant perhaps should have had some probative value, except when TTAB subjectively decides they are not related and dismisses it out of hand.

At 6:08 PM, Anonymous Anonymous said...

Gene, if every TTAB case, including ex parte cases, would require a survey, exactly how many thousands of dollars would your clients be willing to pay in filing fees for a single class?

At 7:53 PM, Anonymous Bob Frank said...

With all the third-parties who use Loggerhead for beers or bar/restaurants one would think that adding a second term would be necessary to distinguish one from another.

Loggerhead American Lager by Locavore Beer Works is a Lager
Loggerhead by Swamp Head Brewery is a Lager
Loggerhead was a Bavarian purity (Reinheitsgebot) brewery. Introduced in 1516,

So what’s up with the name, Loggerhead? A bock tradition in German, and at Schell Brewery in New Ulm Minnesota where we clearly stole the idea from,

At Loggerhead's, we are committed to satisfying our customers with great food and excellent ... Beer, Wine & Cocktails

At 7:41 AM, Anonymous Frederick Spaeth said...

If the restaurant was required to claim a design mark matching their specimen, instead of a the outcome could have been different, no?


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