again that the opposer s h o u l d not rely on previous decisions to show that all alcohol beverage products are related: “Put simply, Opposer cannot evade its burden to prove relatedness by bootstrapping upon previous factual findings made in other decisions on different records.” Moreover, the evidentiary record in this case—six third-party trademark registrations covering both beer and rum—fell far short of the evidence presented in other cases “given the number of breweries and beer brands in the U.S.” Make no mistake: the fact that there is no similar pending application or registration for alcohol beverages does not mean that an alcohol beverage application faces a clear road to registration. In fact, the TTAB recently refused to register TURNURA for “cigars” based on a likelihood of confusion with TURNURA for “liquor; tequila; vodka; wines,” finding that the goods were related in part
because they were “complementary products.”9 The evidentiary record showed that multiple third-parties produced both alcohol beverage products and cigars under the same mark and that the products were marketed for “simultaneous consumption.” Applicant pointed to a case from 1970 in which the court said tequila and cigars were unrelated, but the TTAB stated that the evidence presented in this case showed that industry practice had changed: “To be clear, we are not finding that cigars and alcoholic beverages in general are related based upon some abstract similarity between alcohol and tobacco. The record in this case establishes that cigars and alcoholic beverages are not only produced and offered for sale by third parties under the identical mark, but they are also complementary products that are marketed together for simultaneous consumption.” These cases highlight the importance of the fact-intensive inquiry surrounding the relatedness of alcohol beverage products. When opposing the trademark application for a mark for wine, beer, or other alcohol beverages, distillers should provide ample factual evidence to prove that the specific goods are related. Merely relying on previous cases to show that spirits and other alcohol beverages are related will not suffice. Conversely, applicants seeking a trademark registration for alcohol beverages (be it beer, wine, vodka, etc.) should pay particular attention to applications and/or registrations for all alcohol products (as well as products that could 9 In re El Galan, Inc., Serial No. 86961428 (TTAB Feb. 1, 2018).
6th Annual Distillers’ Convention & Vendor Trade Show FEBRUARY 10-12, 2019 • HYATT REGENCY • MINNEAPOLIS, MN Register Today at americancraftspirits.org 28
The magazine for craft distillers and their fans.