Foster’s Brands LimitedDownload PDFTrademark Trial and Appeal BoardSep 30, 2009No. 77369411 (T.T.A.B. Sep. 30, 2009) Copy Citation Mailed: September 30, 2009 UNITED STATES PATENT AND TRADEMARK OFFICE ________ Trademark Trial and Appeal Board ________ In re Foster's Brands Limited ________ Serial No. 77369411 _______ Gary D. Krugman of Sughrue Mion, PLLC for Foster's Brands Limited. William Breckenfeld, Trademark Examining Attorney, Law Office 116 (Robert Lorenzo, Managing Attorney). _______ 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 3 registration, goods and services are presumed to travel in the same channels of trade to the same class of purchasers.â€). 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 4 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 5 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 6 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 7 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 8 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 9 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. Copy with citationCopy as parenthetical citation