TTABlog Test: Is APPARITION Confusable with PHANTOM for Wine?

Bogle Vineyards opposed an application to register the mark APPARITION for wine, claiming likely confusion with the registered mark PHANTOM for "alcoholic beverages except beer" and its common law mark PHANTOM for wine. The goods are legally identical, and the channels of trade and classes of consumers are presumably the same (at least as to the registered mark). But are the marks confusingly similar? How do you think this came out? Bogle Vineyards, Inc. v. sixmilebridgevineyards, LLC, Opposition No. 91276339 (August 29, 2025) [not precedential] (Opinion by Judge Robert Lavache).

The Board found the mark PHANTOM to be inherently distinctive. Applicant pointed to third-party registrations for the marks GRAY GHOST, WRAITH, SILVER SPIRIT, and WIGHT VINEYARD for wine, as evidence that PHANTOM is a weak mark. The Board brushed them aside, noting that although the marks could be perceived as connoting the concept of a ghost, none of the registrations included the word PHANTOM.

As to commercial strength, applicant pointed to a dozen or so registered marks containing the word GHOST, but, as the Board observed, "Opposer’s mark is PHANTOM, not GHOST, and these examples do not show that PHANTOM is so widely used in connection with wine that it could be considered relatively weak and thus entitled to a narrower scope of protection."

In sum, Applicant’s evidence of third-party registrations and third-party marketplace use does not support a finding that Opposer’s PHANTOM mark is entitled to a narrower scope of protection.

Opposer Bogle claimed that its mark is famous, but its proofs fell well short. There was no specific information as to sales volume and advertising expenditures relating to PHANTOM-branded wine, nor evidence that the mark enjoys wide recognition among the relevant consumers, "such as evidence of advertisements over the duration of the mark’s use; promotional activities in various forms of media in connection with the mark; and unsolicited media coverage of the goods sold under the mark."

Based on this record, we find that, while PHANTOM may have some degree of recognition among wine purchasers, Opposer has not met its burden of proving that the mark has achieved such a level of fame that is entitled to a broader scope of protection under the fifth DuPont factor.

Tuning to the first DuPont factor, Bogle argued that the marks are "are identical in connotation and commercial impression" and "and "[s]ince the average consumer purchasing wine will only retain a general recollection of the commercial impression of each mark, namely, that of a frightening supernational being (a phantom/apparition), brand confusion is likely." The Board agreed with Bogle that the involved marks are synonyms, "in at least one sense of each term." "On the other hand, similarity between marks in one respect, e.g., connotation, does not automatically result in a finding of likelihood of confusion even if, as here, the parties’ goods are legally identical."

With that in mind, we note that . . .  APPARITION and PHANTOM are completely different words that otherwise share no similarities as to sound or appearance. Indeed, they are both common, familiar words that are easily distinguishable from one another because they start with different letters, are formed by a different number of syllables, and have no terms, or even syllables, in common.

Moreover, "phantom" and "apparition" each have additional meanings that differ from their shared meaning. Therefore, the two terms "could stimulate different mental reactions in the minds of the relevant consumers when the terms are applied to wine, thus engendering different commercial impressions overall."

Concluding that consumers are likely to differentiate between PHANTOM and APPARITION in view of their differences in sound, appearance, and overall commercial impression, the Board found that the first DuPont factor "weighs heavily" against a finding of likelihood of confusion.

Balancing the relevant DuPont factors, the Board found that the first DuPont factor outweighed the second and third, and it therefore dismissed the opposition.

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TTABlogger comment: I suspect you got this right.

Text Copyright John L. Welch 2025.