Recently, the PTO rejected an application to trademark the logo on the left (“Applicant”) because it was “likely to cause confusion” with the logo on the right (“Registrant”). Applicant appealed this decision.
The Applicant’s first argument on appeal was that it made organic beer, while the Registrant made non-organic beer. The board, however, held that this was a useless distinction because they are both essentially the same type of product. Additionally, both the Applicant and the Registrant make craft beer, and organic beer is considered a subset of craft beer. Thus, because both products would travel in the same general areas of commerce, the PTO felt that there was a significant possibility of confusion between the two marks.
As can be seen above, the words in each mark are almost identical. Applicant argued that the design of the mark was enough to distinguish the two logos, but the PTO felt otherwise. Indeed, the PTO said that both the female head in the applicant’s mark and the tree (combined with the “ME” initials) in the registered mark connoted “the earth as a nurturing place.” Moreover, the PTO noted that “words are generally accorded greater weight” when “a mark consists of words and designs.” Purchasers, they said, were likely to view the two marks as different beers coming from the same company. Although Applicant offered evidence that there had not been any confusion between the two marks in the past because of a significant geographical difference, the PTO had to assume that the Registrant’s beer was sold “throughout the country and in all areas of trade.” In making this assumption, the PTO protected the Registrant from any future consumer confusion that might be caused by approving the Applicant’s mark.
Source: TTaBlog 1/14/14
Chip Spawn, J.D. Candidate 2016, Rutgers School of Law – Newark
Copyright 2014 Chip Spawn