Thursday, March 03, 2022

TTABlog Test: Are Candy (Class 30) and Liquor (Class 33) Related Under Section 2(d)?

The USPTO refused to register the proposed mark SWEET GEORGIA BROWN for "liquor," finding confusion likely with the registered mark SWEET GEORGIA BROWNS for "candy." The marks are awfully darn close, but what about the goods? How do you think this appeal came out? In re Spirits of the USA LLC, Serial No. 90460529 (March 1, 2022) [not precedential] (Opinion by Judge Robert H. Coggins).

In its appeal, applicant understandably did not contest the issue of similarity of the marks, instead focusing on the second and third DuPont factors. It feebly argued that in actual use on its labels and on the registrant's boxes, the marks will not cause confusion. The Board pointed out, however, that the involved marks are in standard character form and therefore the actual manner of use of the marks in the marketplace is irrelevant to the DuPont analysis.

As to the relatedness of the goods, applicant argued that the nature of the goods is different, as are the channels of trade: applicant's liquor is bottled in Georgia and sold only in licensed stores and restaurants, while registrant's candy is available only online from Canada. Unfortunately for applicant, there were no such limitations in its application or in the cited registration, and so the Board must presume that the involved products move in the normal channels of trade for those products, to all classes of purchasers thereof.

Examining Attorney Gaynne G. Zimmerman submitted webpage printouts showing that "liquor and candy are regularly produced by the same companies, under the same marks, and offered for sale in the same channels of trade." Moreover, "the goods are often used in combination such as with candy flavored liquor, liquor-filled candies, or candied liqueurs." For example, Jack Daniel's, Godiva, Johnnie Walker, Baileys, and Captain Morgan offer liquor and candy. Anthon Berg, Turin, Panda, and Buffalo Trace make candy with liquor fillings.

We find the internet excerpts are sufficient to establish that Applicant’s “liquor” and Registrant’s “candy” are related in that they are of a type that commonly originate from the same source under the same mark, are used by the same consumers, and serve complementary purposes.

Finally, there was no support for applicant's argument that the involved products are purchased with any heightened degree of care.

And so, the Board affirmed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: In light of the USPTO's evidence, WYHA?

Text Copyright John L. Welch 2022.


At 10:04 AM, Blogger Unknown said...

This is an unfortunate outcome. At least it is a non-precedential decision. I think this is a good example where hiring a trademark lawyer may have resulted in a different outcome for the pro se applicant.

At 7:00 PM, Anonymous Paul Reidl said...

Everything is related to alcohol beverages. The PTO has no sense of perspective on this. Sadly, an EA can find anything on the internet and it automatically becomes Gospel. As one who practices in this space, it is very frustrating because the bar is not just low -- it is on the ground - the EA's know it, and the TTAB will not require any perspective on the point. If there are 4-5 web sites, the EA wins.


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