Intellectual Property Law

New Matter WINTER 2015, Volume 40, Number 4

TTAB Decisions and Developments

JANE SHAY WALD
Irell & Manella LLP

DECISIONS AND DEVELOPMENTS

Likelihood of Confusion; Evidence

The Board sided with the Opposer, Anheuser-Busch, and sustained an opposition, precluding registration of the mark WINEBUD for "alcoholic beverages except beers; wines and still wines and sparkling wines; beverages containing wine, namely, sparkling fruit wine and still fruit wine; ready to drink alcoholic beverages except beers." Anheuser-Busch asserted likelihood of confusion and dilution in view of its registrations and prior use of the mark BUD and several BUD-formative marks for beer. The Board noted that when a mark is famous, it is entitled to great weight in a likelihood of confusion analysis. It found the record replete with substantial evidence of fame of BUD and BUDWEISER and related marks. Applicant did not deny or even address Opposer’s contention that these are famous marks. The Board explained that while fame, without more, is insufficient, to establish a likelihood of confusion, "a finding of fame puts a heavy thumb on Opposer’s side of the scale." Applicant’s argument that consumers would not associate WINEBUD with Opposer or its goods went as follows: "Applicant’s mark is WINEBUD. Wine comes from grapes. Grapes grow on vines. Vines have buds. ‘Vine bud’ is a recognized term in the field of viticulture." The Board pointed out that there was only one mention of the term "vine bud" in a so-called wine publication, and no other evidence showing it was a term known in viticulture "let alone a term recognized by the usual purchasers of wine or beer." The Board concluded that beer and other alcoholic beverages, including wine, are related, such that their buyers and channels of trade overlap. The fame of the BUD mark would cause consumers to think that Opposer had expanded its product line to include wine. The Board did not credit Applicant’s attack on Opposer’s survey. The Board found no basis for Applicant’s unsupported view that on-line surveys weren’t effective. It also disagreed that a 400 respondent survey was too small to provide meaningful results relative to a large population. Since the Board determined that applicant was not entitled to registration under Trademark Act Sec. 2(d), it deemed it unnecessary to consider the Opposer’s dilution claim. Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 U.S.P.Q2d 1816 (TTAB 2015).

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