Tuesday, January 30, 2024

TTABlog Test: Is CHILL for Hard Seltzer Confusable with CHILL for Beer?

The USPTO refused to register the proposed mark CHILL for "hard seltzer," finding confusion likely with the identical mark registered for "beer." On appeal, Applicant MetaBev argued that "something more" is required than merely showing that the goods are alcoholic beverages, and that the involved goods are marketed to different consumers in different areas of the stores in which they are sold. How do you think this came out? In re MetaBev LLC, Serial No. 90897101 (January 22, 2024) [Not precedential] (Opinion by Judge Melanye K. Johnson).

The first DuPont factor "weighed heavily" in favor of affirmance of the refusal. Examining Attorney Kelly Wells established the relatedness of the goods through websites excerpts for Bottle Republic, Whole Foods Market, Walmart, Target, Drizly, Hazel’s Boulder, Bailey’s Boulder, Corona, Bud Light, Michelob Ultra, and CNBC, showing that "beer and hard seltzer often originate from the same source and are often advertised and sold under the same mark."  The evidence also indicated that hard seltzer is categorized as a subset of beer.

The Board agreed with MetaBev that there is no per se rule that all alcoholic beverages are related, but it rejected the assertion that "something more" — often a requirement in cases involving food and restaurant services — is necessary here: "no services are identified in the application or the cited registration and relatedness of the identified goods is evident."

The Board gave the cold shoulder to MetaBev's assertion that its hard seltzer and registrant’s beer are marketed to different consumers, in different areas of stores. Looking to the same website evidence that proved relatedness, the Board found that "the trade channels for Applicant’s hard seltzer and Registrant’s beer would include breweries, liquor stores, grocery markets, and other retail establishments which sell both beer and hard seltzer online and in brick-and-mortar stores." The relevant class of consumers for the identified goods would be identical: "adult members of the general public who consume alcohol."

Moreover, we find that consumers who are familiar with Registrant’s Mark for beer, and who then encounter Applicant’s Mark (i.e., the identical mark) for hard seltzer, may think Applicant’s hard seltzer is a product line extension of Registrant’s beer.

There was no evidence of third-party use of CHILL or CHILL-formative marks for beer. MetaBev pointed to several third-party registrations for CHILL-formative marks for various alcoholic beverages, but again none were for beer and so they had no impact on the strength of the cited mark: "the third-party registration evidence of record is not probative of commercial, or marketplace, weakness, inasmuch as it tells us nothing about the extent to which the third-party marks may have been used, or the amount of exposure relevant customers may have had to those marks."

As to conceptual strength of the cited mark, the record evidence was too scanty to show any weakness of the mark, and so the Board accorded registrant's mark the normal scope of protection to which an inherently distinctive mark is entitled."

And so, finding the marks, trade channels, and classes of purchasers to be identical and the goods highly related, the Board affirmed the refusal under Section 2(d) of the Trademark Act.

Read comments and post your comment here.

TTABlogger comment: Note the differing treatment of the third-party registration evidence. Extent of use must be shown for purposes of attacking the commercial strength of the cited mark, but not for showing the relatedness of the goods.

Text Copyright John L. Welch 2024.


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