Foster’s Brands Limited

Trademark Trial and Appeal Board

Sep 30, 2009

No. 77369411 (T.T.A.B. Sep. 30, 2009)

Mailed: September 30, 2009

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Foster's Brands Limited
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Serial No. 77369411
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Gary D. Krugman of Sughrue Mion, PLLC for Foster's Brands Limited.

William Breckenfeld, Trademark Examining Attorney, Law Office 116
(Robert Lorenzo, Managing Attorney).
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Before Hairston, Holtzman and Walsh, Administrative Trademark
Judges.

Opinion by Holtzman, Administrative Trademark Judge:

Applicant, Foster's Brands Limited, has filed an application
to register the mark LINDEMANS EARLY HARVEST in standard characters
for "wines" in Class 33.1
The trademark examining attorney has refused registration
under Section 2(d) of the Trademark Act on the ground that

1 Serial No. 77369411, filed January 11, 2008, based on an allegation of a
bona fide intention to use the mark in commerce under Section 1(b) of the
Trademark Act and on a claim of priority under Section 44(d) of the Act.
Applicant has claimed ownership of Registration No. 1091531 for the mark
LINDEMANS and Registration No. 2764877 for the mark LINDEMANS L 1843 (and
design), both for "wines."

THIS OPINION IS
NOT A PRECEDENT OF
THE TTAB
Ser Nos. 77369411
2
applicant's mark, when applied to applicant's goods, so resembles
the typed mark EARLY HARVEST registered on the Principal Register
for "wine" in Class 33, as to be likely to cause confusion.2
When the refusal was made final, applicant appealed. Briefs
have been filed.
Our determination under Section 2(d) is based on an analysis
of all of the probative facts in evidence that are relevant to the
factors bearing on the likelihood of confusion issue. In re E.I.
du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (CCPA 1973).
In any likelihood of confusion analysis, however, two key
considerations are the similarities or dissimilarities between the
marks and the similarities or dissimilarities between the goods or
services. See Federated Foods, Inc. v. Fort Howard Paper Co., 544
F.2d 1098, 192 USPQ 24 (CCPA 1976).
The goods in the application and the cited registration are
identical; both are for wine. Because the goods are identical, and
there are no limitations either in the application or the cited
registration, we must assume that the channels of trade and classes
of purchasers for the goods are identical as well. See Hewlett-
Packard Co. v. Packard Press, Inc., 281 F.3d 1261, 62 USPQ2d 1001
(Fed. Cir. 2002) (“[A]bsent restrictions in the application and

2 Registration No. 2746290; issued August 5, 2003; Sections 8 and 15
affidavits accepted and acknowledged.
Ser Nos. 77369411
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registration, goods and services are presumed to travel in the same
channels of trade to the same class of purchasers.”).
We turn to a comparison of applicant's mark LINDEMANS EARLY
HARVEST with registrant's mark EARLY HARVEST, keeping in mind that
when marks would appear on identical goods, the degree of
similarity between the marks necessary to support a finding of
likelihood of confusion declines. Century 21 Real Estate v.
Century Life, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992).
In determining the similarity or dissimilarity of marks, we
must consider the marks in their entireties in terms of sound,
appearance, meaning and commercial impression. See du Pont, supra.
See also Palm Bay Imports, Inc. v. Veuve Clicquot Ponsardin, 396
F.3d 1369, 73 USPQ2d 1689 (Fed. Cir. 2005).
The phrase EARLY HARVEST is registrant's entire mark. The
identical phrase EARLY HARVEST is a significant component of
applicant's mark. The only difference between the marks is the
addition of the house mark LINDEMANS to applicant's mark. However,
it is generally held that the addition of a house mark or other
such matter to one of two otherwise confusingly similar marks will
not serve to avoid a likelihood of confusion. See, generally, In
re Christian Dior, S.A., 225 USPQ 533 (TTAB 1985) (LE CACHET DE
DIOR for shirts confusingly similar to CACHET for dresses); In re
Riddle, 225 USPQ 630 (TTAB 1985) (RICHARD PETTY"S ACCUTUNE and
design for automotive service center confusingly similar to
Ser Nos. 77369411
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ACCUTUNE for automotive testing equipment); and In re C. F.
Hathaway Company, 190 USPQ 343 (TTAB 1976) (HATHAWAY GOLF CLASSIC
for knitted sports shirts confusingly similar to GOLF CLASSIC for
men's hats).
There are exceptions to this general principle. For example,
the additional matter may be sufficient to distinguish the marks in
situations where the appropriated matter is highly suggestive or
merely descriptive of the goods (e.g., Knight Textile Corp. v.
Jones Investment Co., 75 USPQ2d 1313 (TTAB 2005) (NORTON MCNAUGHTON
ESSENTIALS not confusingly similar to ESSENTIALS for identical
clothing where evidence established that ESSENTIALS is highly
suggestive for clothing); or where the marks in their entireties
convey significantly different meanings or commercial impressions
(e.g., Lever Brothers Company v. The Barcolene Company, 463 F.2d
1107, 174 USPQ 392 (CCPA 1972) finding "ALL CLEAR!," a play on an
expression popularized in connection with air raid drills, not
confusingly similar to ALL, both for household cleaning products).
It is applicant's position that these exceptions are
applicable here. Applicant argues that "EARLY HARVEST" is "a term
of art" in the wine industry describing the seasonal condition
under which a wine is produced, and as such it is a highly
suggestive or otherwise "non-distinctive"3 term for wine, entitled

3 We construe applicant's argument that EARLY HARVEST is "non-distinctive"
as an argument that the term is highly suggestive and weak inasmuch as
Ser Nos. 77369411
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to a narrow scope of protection. In view of the asserted weakness
of EARLY HARVEST, applicant concludes that the addition of its
house mark LINDEMANS to EARLY HARVEST alters the commercial
impression of the mark and is sufficient to distinguish the marks
as a whole. To demonstrate the meaning of "early harvest,"
applicant relies on usage of "early harvest" in print and online
magazines, and excerpts from blogs and websites with information
and commentary about various wineries and wine-producing regions.4
Some examples are as follows.
Early Harvest and New Packaging.
I've emerged from the earliest harvest in probably 25
years' experience, and once again have lived to tell
about it! ... Bear in mind that the first date of
harvest doesn't designate it as "early." However, the
fact that most all varieties were in by the first week
of October definitely makes the harvest season "way
early."
Wildhurst Vineyards

Early harvest.
He told me last week that the grapes would not be ready
to pick until the last week of August. ... I will stop
by the vineyard and sample to verify that the grapes
are actually ready to harvest. If so it will be the
earliest start of harvest ever. Why so early? I
suspect it is because the vineyard got hit with frost

such claim would otherwise constitute an impermissible collateral attack
on the validity of the cited registration which is registered on the
Principal Register and therefore presumed to be distinctive.

4 In its response to the first Office action, applicant noted, and the
evidence showed, that the term "late harvest" is a term of art used in the
wine industry to refer to wines made from grapes left on the vine longer
than usual, indicative of a sweet dessert wine. Applicant did not pursue
this argument in its brief, and in any event, there is no evidence that
the term "early harvest" is similarly used to describe or identify certain
wines or characteristics of wines.
Ser Nos. 77369411
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and is not carrying as heavy a load as usual and
therefore is ripening faster.
sierravistawinery.blogspot.com

Vintage History.
[2006] The Willamette Valley heated up again pushing
the small berries into overdrive and launching an early
harvest for Pinot Noir.
rexhill.com

napa valley vinters.
Because of the early vine development in spring,
growers were initially predicting a very early harvest;
however because of the cooler summer it started just a
little ahead of normal.
napavintners.com

Usually a dry spring with a light crop means an early
harvest. However, the weather during the rest of the
summer trended cooler than average which slowed down
ripening to some degree.
Id.

Early Grape Harvest Begins In Wine Country.
Bowen says this year's earlier harvest is likely due to
a dry spring and a mild summer.
ktvu.com

Early harvest coincides with climate change message.
News last Friday, August 1, of what some called the
earliest harvest in 20 years brought the Thursday-
Friday climate change seminar at Gloria Ferrer Winery
into immediate-but panicked-local focus.
sonomasun.thmm.com
Italian winemakers expect early harvest, good-quality
wine.
[The Italian Wine union] said that early wine harvests
are becoming common because of rising global
temperatures.
iht.com

2005 Harvest/Vintage Notes.
Spain - Very dry and hot weather brought about an early
harvest in most parts of Spain. Lack of rainfall in
some areas brought lower grape yields but flavors are
concentrated.
Ser Nos. 77369411
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cellarnotes.net

We find that the term "early harvest" is at most only
suggestive of wines. It can be seen from the excerpts above, and
the other evidence of record similarly shows, that the term "early
harvest" refers to the early start of the harvest season for
grapes.5 An early harvest is usually forced by extreme weather
conditions such as a late frost or persistent heat which may
accelerate the ripening process. There is no question that, as
applicant points out, timing is critical to harvesting grapes.
However, there is no evidence that an early harvest is related,
except in a vague sense, to the grapes or wines themselves. That
is, there appears to be no direct relationship between an early
harvest and any essential quality or other aspect of the grapes.6
As noted in In re Melville Corp., 18 USPQ2d 1386, 1389 (TTAB 1991)
"[t]here are varying degrees of suggestiveness ranging from a hint
of suggestion to so highly suggestive as to border on

5 Two of the three excerpts specifically mentioned by applicant in its
brief are not persuasive. The reference to "early harvest vineyard", on
pfeiffervineyards.com (the full statement being "We are fortunate to have
an 'early harvest' vineyard and avoided the rain") provides no context for
"early harvest vineyard" and it is unclear what the term refers to. In
the article from californiaagriculture.ucop.edu the reference to "early
harvest" is not relevant, inasmuch as that article is discussing table
grapes, not wine.

6 An early harvest may produce grapes with certain favorable qualities,
but this would be due to factors other than the "early harvest" itself.
For example, it is heat and dry conditions which "banish[] mold and
parasites from the vines and thicken[] the grapes' skin, which gives wine
its aromas..." (chinadaily.com); and it is heat or possibly frost which
may lower the yield and thereby "increase[] the intensity and quality of
the wines...." (larkmead.com; sierravistawinery.com).
Ser Nos. 77369411
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descriptiveness." To the extent that EARLY HARVEST is suggestive
of wine, we believe it is "safely in the lower range of the scale."
Id. Cf., Knight Textile Corp., supra.
In any event, we do not find that the mark is so highly
suggestive that applicant may incorporate registrant's entire
distinctive mark and overcome confusion by adding LINDEMANS.7 Thus,
this is not a situation where the addition of a house mark to one
of two otherwise similar marks would avoid likelihood of confusion
between them.
Because the identical term EARLY HARVEST is registrant's
entire distinctive mark and forms a significant part of applicant's
mark, we find that the marks as a whole are similar in sound,
appearance, connotation and commercial impression. Contrary to
applicant's contention, the commercial impressions created by the
two marks are not significantly different. Purchasers familiar
with the registrant's mark EARLY HARVEST as used on wine are likely
to assume that the house mark LINDEMANS simply identifies what had
previously been an anonymous source for the wine. See In re Fiesta
Palms LLC, 85 USPQ2d 1360, 1364 (TTAB 2007).

7 We note applicant's reliance on Knight Textile Corp., supra; however
that case (finding the term "ESSENTIALS" highly suggestive for clothing)
does not compel a finding that the mark in this case is highly suggestive
or that the marks and goods in this case are not likely to cause
confusion. Nevertheless, we note that the Board in that case found that
the term "ESSENTIALS" connoted that the clothing items were "basic and
indispensable components of, or 'essentials' of, one's wardrobe," and
thus, unlike in the present case, the suggestive meaning of the term
referred more directly to the goods themselves.
Ser Nos. 77369411
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Even if we had any doubts as to the likelihood of confusion,
we would resolve them, as we must, in registrant's favor. In re
Hyper Shoppes (Ohio), Inc., 837 F.2d 463, 6 USPQ2d 1025, 1026 (Fed.
Cir. 1988); and In re Pneumatiques, Caoutchouc Manufacture et
Plastiques Kleber-Colombes, 487 F.2d 918, 179 USPQ 729, 729-30
(CCPA 1973).
In view of the foregoing, and because similar marks are used
in connection with identical goods, likelihood of confusion exists.8
Decision: The refusal to register under Section 2(d) of the
Trademark Act is affirmed.

8 Applicant in its reply brief has agreed to disclaim the term EARLY
HARVEST if such disclaimer would result in allowance of the application.
In view of our decision herein, a disclaimer will not be entered.