Industria de Licores Del Valle de Caucav.Guillermo Uribe

Trademark Trial and Appeal Board

Jul 21, 2010

No. 91150615 (T.T.A.B. Jul. 21, 2010)

Mailed:
July 21, 2010

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

Industria de Licores Del Valle de Cauca
v.
Guillermo Uribe
_____

Opposition No. 91150615
to Application Serial No. 78015297
filed on July 3, 2000
_____

Ari Rafilson of Sidley Austin, LLP for Industria de Licores
Del Valle De Cauca.

Guillermo Uribe pro se.
_____

Before Walters, Zervas and Bergsman,
Administrative Trademark Judges.

Opinion by Bergsman, Administrative Trademark Judge:

Guillermo Uribe (“applicant”) filed an intent-to-use
application for the mark AGUARDIENTE DEL VALLE and design,
shown below, for “distilled spirits, namely aguardiente,” in
Class 33.1 Applicant disclaimed the exclusive right to use
the word “Aguardiente” and provided an English translation
of the term “Del Valle” as meaning “of the valley.”

1 Aguardiente is “a liquor, popular in South and Central America,
made from sugar cane.” The Random House Dictionary of the
English Language (Unabridged) p. 41 (2nd ed. 1987). The Board may
take judicial notice of dictionary evidence. University of Notre
Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594 (TTAB
1982), aff’d, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983).
THIS OPINION IS NOT CITABLE
AS A PRECEDENT OF THE
T.T.A.B.
Opposition No. 91150615
2

Industrial de Licores Del Valle del Cauca (“opposer”)
opposed the registration of applicant’s mark on the
following grounds:2
1. Priority of use and likelihood of confusion;
2. Pursuant to Article 7 of the Pan American
Convention registration should be refused because applicant
knew of the prior existence and continuous use of opposer’s
previously registered AGUARDIENTE DEL VALLE marks in
Columbia; and
3. Pursuant to Article 6 of the Paris Convention
registration should be refused because applicant, as an
agent or representative of opposer, improperly applied to
register the mark at issue in his own name.
With respect to its priority and likelihood of
confusion claim, opposer alleged that it has used the marks
AGUARDIENTE DEL VALLE, AGUARDIENTE DEL VALLE BLANCO, and
ARUGUARDIENTE BLANCO DEL VALLE to identify aguardiente and
that it has used its trade name since prior to the filing

2 In the amended notice of opposition, opposer also alleged a
dilution claim. However, opposer presented no argument in its
brief on such claim, and we give it no further consideration.
Opposition No. 91150615
3
date of the application at issue and that applicant’s mark
AGUARDIENTE DEL VALLE AND DESIGN for aguardiente so
resembles opposer’s previously used marks to be likely to
cause confusion.
In its answer, applicant denied the salient allegations
in the amended notice of opposition. As an affirmative
defense, applicant asserted, in essence, that the opposition
should be dismissed because of opposer’s fraudulent conduct,
unclean hands, and abandonment of its mark. Applicant did
not state with particularity the circumstances constituting
fraud in its affirmative defenses. See Fed. R. Civ. P. 9(b).
Preliminary Issues
Opposer filed a motion to strike the Spanish language
documents in applicant’s notices of reliance that did not
have an English translation. Applicant did not file a brief
in opposition to opposer’s motion. “When a party fails to
file a brief in response to a motion, the Board may treat
the motion as conceded.” Trademark Rule 2.120(a).
Accordingly, we treat opposer’s motion as conceded.
Moreover, opposer’s motion to strike is well taken because
foreign language documents that are not accompanied by an
English translation are essentially incomprehensible. See
Hard Rock Café Licensing Corp. v. Elsea, 48 USPQ2d 1400,
1405 (TTAB 1998) (sustaining objections to foreign language
documents submitted via notice reliance as being
Opposition No. 91150615
4
unintelligible); see also Blue Man Productions Inc. v.
Tarmann, 75 USPQ2d 1811, 1819 (TTAB 2005) (foreign language
documents without a translation have limited or no probative
value because the Board does not understand them).
Also, opposer filed a motion to strike applicant’s
fourth notice of reliance comprising two exhibits: a
decision rendered in a Columbian criminal proceeding and an
affidavit of applicant’s witness Miguel Uribe Romero.
Applicant failed to file a brief in opposition to opposer’s
motion and we, therefore, treat opposer’s motion as conceded
and sustain opposer’s objection to the admissibility of the
documents in applicant’s fourth notice of opposition.
Trademark Rule 2.120(a). Furthermore, we note that
opposer’s objection to the evidence is well taken for the
reasons articulated in opposer’s motion to strike.3

3 In an Order dated August 12, 2009, the Board denied applicant’s
motion to extend trial dates to permit applicant to introduce
testimony from the above-noted Columbian criminal proceeding.
Applicant is essentially trying to introduce that evidence by
introducing the final decision from that criminal proceeding.
Section 17 of the Trademark Act of 1946, 15 U.S.C. §1067, gives
this Board the authority and duty “to determine and decide the
respective rights of registration.” In determining the rights to
registration, each case must be decided on its own merits based
on the evidence of record. We are obviously not privy to the
entire record before the court in Colombia and, in any event, we
must make our own decision and we are not bound by the findings
of another court based on facts not before us and upon laws which
may not be applicable to our determination. Thus, we expressly
reject applicant’s argument that the decision of the Colombian
court is relevant. (Applicant’s Brief, p. 19).
With respect to applicant’s attempt to introduce the
declaration of Miguel Uribe, opposer expressly refused to
stipulate to the introduction of testimony by declaration. See
Trademark Rule 2.123(b).
Opposition No. 91150615
5
With respect to the remaining evidence proffered by
applicant, opposer has lodged numerous objections. None of
the other evidence sought to be excluded is outcome
determinative. Given this fact, coupled with the number of
objections, we see no compelling reason to discuss the
specific objections. Suffice it to say, we have considered
all of the testimony and exhibits submitted and not
otherwise excluded herein by both parties. In doing so, we
have kept in mind the various objections raised by the
parties, we have accorded whatever probative value the
subject testimony and evidence merit.
The Record
By operation of Trademark Rule 2.122, 37 CFR §2.122,
the record includes the pleadings and the application file
for applicant’s mark. The record also includes the
following testimony and evidence:
A. Opposer’s Evidence.

1. Opposer’s first notice of reliance on printed
publications, applicant’s responses to written discovery,
and copies of official records from Colombia, including
opposer’s Colombian trademark registrations for, inter alia,
AGUARDIENTE DEL VALLE AMARILLO, BLANCO DEL VALLE,
AGUARDIENTE DEL VALLE BLANCO, AGUARDIENTE BLANCO DEL VALLE,
and AGUARDIENTE DEL VALLE BLANCO EXTRAFINO.
Opposition No. 91150615
6
2. Opposer’s second notice of reliance on applicant’s
responses to opposer’s written discovery.
3. Testimony deposition of Doney Ospina, opposer’s
General Manager, with attached exhibits; and
4. Testimony deposition of Maria Victoria Cruz,
opposer’s Deputy Manager of Administration and Finance, with
attached exhibits.
B. Applicant’s Evidence.
Applicant filed three notices of reliance on various
documents.
Standing

Opposer sells aguardiente identified as AGUARDIENTE
BLANCO DEL VALLE in commerce with the United States.4
Furthermore, opposer is the owner of a pending trademark
application Serial No. 76109898 for the mark AGUARDIENTE
BLANCO DEL VALLE, in standard character form, for “distilled
liquor, wine, and distilled spirits of sugar cane,” in Class
33.5 Applicant’s application was cited as a potential bar
to the registration of opposer’s mark. In previous cases,
the Board has found standing where the defendant’s
application or registration had been cited as a bar to the
plaintiff’s application. “The filing of opposer’s

4 Applicant’s notice of reliance (Opposer’s response to
applicant’s interrogatory Nos. 1, 3 and 19(a)); Cruz Dep., p.
251; Ospina Dep., p. 25.
5 Applicant’s notice of reliance.
Opposition No. 91150615
7
application and the Office’s action taken in regard to that
application provides opposer with a basis for pleading its
standing.” Fiat Group Automobiles S.p.A. v. ISM, Inc.,
94 USPQ2d 1111, 1112 (TTAB 2010) (“the Office made a
provisional refusal of opposer’s application based on
prior pending applications), citing Life Zone Inc. v.
Middleman Group Inc., 87 USPQ2d 1953, 1959 (TTAB 2008)
(standing found because the opposed application was cited as
a potential bar to opposer’s registration); see also Lipton
Industries, Inc. v. Ralston Purina Co., 670 F.2d 1024,
213 USPQ 185, 189 (CCPA 1982).
In view of the foregoing, we find that opposer has
shown that it has a reasonable belief of damage and a real
interest in this proceeding. Therefore opposer is not a
mere intermeddler, and it has established its standing.
Lipton Industries, Inc. v. Ralston Purina Co.,
213 USPQ at 189.
Priority
In order for opposer to prevail on its Section 2(d)
claim, it must prove that it has a proprietary interest in
the mark AGUADIENTE BLANCO DEL VALLE and that it obtained
that interest prior to the earliest date of use that
applicant can claim.6 Herbko International Inc. v. Kappa

6 With respect to its proprietary interest, opposer must
establish that its mark is distinctive – inherently or otherwise.
However, since applicant did not raise any issue regarding the
Opposition No. 91150615
8
Books Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1378 (Fed. Cir.
2002); Otto Roth & Co., Inc. v. Universal Corp., 640 F.2d
1317, 209 USPQ 40, 43 (CCPA 1981); Miller Brewing Co. v.
Anheuser-Busch Inc., 27 USPQ2d 1711, 1714 (TTAB 1993). For
purposes of determining priority of use, because applicant
did not submit evidence of earlier use, applicant’s date of
first use is July 3, 2000, the filing date and therefore the
constructive use date of its intent-to-use application.
Opposer first used the mark AGUARDIENTE BLANCO DEL
VALLE in commerce with the United States on November 14,
1979. Opposer authorized the sale of 7200 bottles of
AGUARDIENTE BLANCO DEL VALLE to Compania de Comercio
Exterior Ltda for sale in the United States. The products
were shipped to New York and sold in New Jersey,
Connecticut, Maine, Delaware, Maryland, Virginia, Florida,
Texas, Mississippi, California, Rhode Island, Georgia,
Alabama, North Carolina, South Carolina and the District of
Columbia.7
In his brief, applicant conflates its defense to
opposer’s claim of priority with his affirmative defenses of
fraud, unclean hands, and abandonment. With respect to
priority of use, applicant makes the following argument:

distinctiveness of opposer’s mark, we consider the mark to be
inherently distinctive.
7 Applicant’s notice of reliance (opposer’s response to
applicant’s interrogatory No. 1); see also Cruz Dep., pp. 14 and
251 and Exhibits 7, 8, 10, 12, 32-36, 47, 53 and 80.
Opposition No. 91150615
9
1. OPPOSER IS NOT SENIOR USER OF THE
SO CALLED AGUARDIENTE DEL VALLE MARKS.

The use of most of the trademarks was
abandoned by Opposer who shifts to the
AGUARDIENTE BLANCO trademarks, as it is
well established by the research done on
the Alcohol, Tobacco and Tax Relief
Trade Bureau. (Emphasis in the
original).8

As best we understand applicant’s position, he does not
challenge opposer’s claim that opposer first used the mark
AGUARDIENTE BLANCO DEL VALLE in commerce with the United
States as early as 1979. It is applicant’s position that
opposer has abandoned that mark in commerce with the United
States. In view of the foregoing, we find that opposer has
proven its prior use, and we analyze applicant’s affirmative
defenses below.
Likelihood of Confusion
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 issue of likelihood
of confusion. In re E. I. du Pont de Nemours & Co.,
476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See also,
In re Majestic Distilling Company, Inc., 315 F.3d 1311,
65 USPQ2d 1201, 1203 (Fed. Cir. 2003). In any likelihood of
confusion analysis, two key considerations are the

8 Applicant’s Brief, pp. 53-54.
Opposition No. 91150615
10
similarities between the marks and the similarities between
the goods and/or services. See Federated Foods, Inc. v.
Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29
(CCPA 1976) (“The fundamental inquiry mandated by §2(d) goes
to the cumulative effect of differences in the essential
characteristics of the goods and differences in the marks”).
A. The similarity or dissimilarity and nature of opposer’s
goods and the goods described in the application.

Applicant is seeking to register its mark for
aguardiente and opposer uses its mark to identify the same
product.9
B. The similarity or dissimilarity of likely-to-continue
trade channels and classes of consumers.

Opposer targets the sales of its aguardiente to the
Latin population in the United States, especially
Colombians.
Q. What is the market population in
the United States to whom this
product - - to whom Aguardiente
Blanco del Valle is marketed?

A. To the population which are trying
to capture which the - -
Aguardiente Blanco del Valle is the
colony - - is the Latin population,
especially the Colombians which
reside outside of Colombia. And in
that sense, we’re aiming - - we
search the regions where there is a
large number of Latinos and
Colombians.10

9 Ospina Dep., pp. 10 and 27; Cruz Dep., p. 143; Opposer’s notice
of reliance, Exhibit 3.
10 Ospina Dep., pp. 25-26.
Opposition No. 91150615
11
With respect to applicant’s aguardiente, because there
are no restrictions as to channels of trade or classes of
consumers in applicant’s description of goods, we must
assume that applicant’s aguardiente will be sold in all of
the normal channels of trade to all of the normal purchasers
for such goods, including Latinos and Colombians. Canadian
Imperial Bank of Commerce v. Wells Fargo Bank,
811 F.2d 1490, 1 USPQ2d 1813, 1815 (Fed. Cir. 1987); Toys R
Us v. Lamps R Us, 219 USPQ 340, 343 (TTAB 1983). Moreover,
because the goods identified in the application and
identified by opposer’s mark are identical, we presume that
the channels of trade and classes of purchasers are the
same. See Genesco Inc. v. Martz, 66 USPQ2d 1260, 1268 (TTAB
2003) (“Given the in-part identical and in-part related
nature of the parties’ goods, and the lack of any
restrictions in the identifications thereof as to trade
channels and purchasers, these clothing items could be
offered and sold to the same classes of purchasers through
the same channels of trade”); In re Smith and Mehaffey,
31 USPQ2d 1531, 1532 (TTAB 1994) (“Because the goods are
legally identical, they must be presumed to travel in the
same channels of trade, and be sold to the same class of
purchasers”).

Opposition No. 91150615
12
C. The similarity or dissimilarity of the marks in their
entireties as to appearance, sound, connotation and
commercial impression.

We now turn to the du Pont likelihood of confusion
factor focusing on the similarity or dissimilarity of the
marks in their entireties as to appearance, sound,
connotation and commercial impression. In re E. I. du Pont
De Nemours & Co., 177 USPQ at 567. In a particular case,
any one of these means of comparison may be critical in
finding the marks to be similar. In re White Swan Ltd.,
8 USPQ2d 1534, 1535 (TTAB 1988); In re Lamson Oil Co.,
6 USPQ2d 1041, 1042 (TTAB 1988). In comparing the marks, we
are mindful that where, as here, the goods are identical,
the degree of similarity necessary to find likelihood of
confusion need not be as great as where there is a
recognizable disparity between the goods. Century 21 Real
Estate Corp. v. Century Life of America, 970 F.2d 874,
23 USPQ2d 1698, 1700 (Fed. Cir. 1992); Schering-Plough
HealthCare Products Inc. v. Ing-Jing Huang, 84 USPQ2d 1323,
1325 (TTAB 2007); Jansen Enterprises Inc. v. Rind,
85 USPQ2d 1104, 1108 (TTAB 2007).
Because the similarity or dissimilarity of the marks is
determined based on the marks in their entireties, the
analysis cannot be predicated on dissecting the marks into
their various components; that is, the decision must be
based on the entire marks, not just part of the marks. In
Opposition No. 91150615
13
re National Data Corp., 753 F.2d 1056, 224 USPQ 749, 751
(Fed. Cir. 1985); see also Franklin Mint Corp. V. Master
Mfg. Co., 667 F.2d 1005, 212 USPQ 23, 234 (CCPA 1981) (“It
is axiomatic that a mark should not be dissected and
considered piecemeal; rather, it must be considered as a
whole in determining likelihood of confusion”). On the
other hand, different features may be analyzed to determine
whether the marks are similar. Price Candy Company v. Gold
Medal Candy Corporation, 220 F.2d 759, 105 USPQ 266, 268
(CCPA 1955). In fact, there is nothing improper in stating
that, for rational reasons, more or less weight has been
given to a particular feature of a mark, provided the
ultimate conclusion rests on a consideration of the marks in
their entireties. In re National Data Corp., 224 USPQ at
751.
There are a number of cases that reflect the principle
that if a mark comprises both a word and a design, the word
is normally accorded greater weight because it would be used
by purchasers to request the goods or services. See In re
Appetito Provisions Co., 3 USPQ2d 1553, 1554 (TTAB 1987);
Kabushiki Kaisha Hattori Tokeiten v. Scuotto, 228 USPQ 461,
462 (TTAB 1985). In this case, we find that the word
portions of the marks are the dominant elements of the marks
because the consumers would use them to call for the
products. In addition, the design portion of applicant’s
Opposition No. 91150615
14
mark is not so distinctive as to attract the consumers’
attention to form a separate and distinct commercial
impression.
The word portions of the marks AGUARDIENTE DEL VALLE
and AGUARDIENTE BLANCO DEL VALLE are substantially similar.
The only difference is opposer’s addition of the word
“blanco” which is Spanish for “white.”11 An English speaker
who knows some Spanish may believe that Aguardiente Blanco
is a white aguardiente, and, therefore, will perceive the
term aguardiente blanco as identifying a type of
aguardiente.12 However, Ms. Cruz testified, without any
evidence to corroborate her testimony, that consumers use
the word “blanco” as a “diminutive of the brand name and is
how the people that uses Pepsi in place of Pepsi-Cola or
Coke instead of Coca-Cola.”13 Whatever, the significance of
the word “blanco,” the term “Del Valle” is the most
significant source identifying feature of the marks and,
therefore, consumers may mistakenly believe that AGUARDIENTE
BLANCO DEL VALLE is a variation of AGUARDIENTE DEL VALLE.
Accordingly, we find that the marks have similar meanings
and engender similar commercial impressions because

11 Applicant’s notice of reliance, Exhibit 4 (Opposer’s
application); Cruz Dep., p. 268.
12 There is no testimony or evidence in the record regarding
aguardiente (e.g., how it is made, its taste, or its color,
etc.). In the photographs of the product that are in evidence,
aguardient is a clear liquid.
13 Cruz Dep., p. 267.
Opposition No. 91150615
15
applicant’s mark means “aguardiente of the valley”14 and
opposer’s mark means “white aguardiente of the valley.”15
Even when we consider the design elements, we find the
marks are similar.16 We note that applicant argued that the
color schemes used by applicant and opposer are different,
however, because applicant did not claim color as a feature
of its mark, applicant’s mark is broad enough to include
opposer’s colors.17
D. Balancing the factors.

Because the marks are similar and the goods, channels
of trade and classes of consumers are identical, we find
that applicant’s mark AGUARDIENTE DEL VALLE and design for
aguardiente so resembles opposer’s previously used mark
AGUARDIENTE BLANCO DEL VALLE for aguardiente as to be likely
to cause confusion.

14 Applicant’s application.
15 Applicant’s notice of reliance, Exhibit 4 (Opposer’s
application); Ospina Dep., p. 6.
16 Cruz Dep., Exhibit 39 is a photograph of a bottle displaying
opposer’s label with the mark AGUARDIENTE BLANCO DEL VALLE in a
rectangular background. Ms. Cruz testified that the label is
currently in use. (Cruz Dep., pp. 67 and 112-113). We could not
reproduce a legible copy to include in the decision.
17 Prior to November 2, 2003, the USPTO did not accept color
drawings. An applicant who wanted to show color in a mark was
required to submit a black-and-white drawing, with a statement
describing the colors and where they appeared on the mark.
Alternatively, the applicant could use a color lining system that
previously appeared in Trademark Rule 2.52 but was deleted from
the rule effective October 30, 1999. See TMEP §807.07(g) (6th ed.
rev. 2 2010)
Opposition No. 91150615
16
Affirmative Defenses
As best we understand applicant’s affirmative defenses,
applicant alleges that opposer is not making lawful use of
the mark in commerce because it has not complied with the
rules and regulations for labeling alcohol and that opposer
has abandoned the mark AGUARDIENTE BLANCO DEL VALLE.
A. Labeling requirements.
Determining whether the use of a mark is lawful under
one or more of the myriad of regulatory acts involves two
questions: (1) whether a court or government agency having
competent jurisdiction under the statute involved has
previously determined that party is not in compliance with
the relevant statute; or (2) whether there is a per se
violation of a statute regulating the sale of a party’s
goods. General Mills Inc. v. Healthy Valley Foods,
24 USPQ2d 1270, 1273 (TTAB 1992). In this case, there has
been no final determination of noncompliance by a court or
agency regarding opposer’s labels. Rather, applicant has
attempted to show that opposer’s shipments of aguardiente
were per se violations of labeling regulations promulgated
by the federal Alcohol and Tobacco Tax and Trade Bureau.18
[I]t is incumbent upon the party
charging that the use was unlawful to
demonstrate by clear and convincing
evidence more than that the use in
question was not in compliance with
applicable law. Such party must prove

18 Applicant’s Brief, pp. 30-33.
Opposition No. 91150615
17
also that the non-compliance was
material, that is, was of such gravity
and significance that the usage must be
considered unlawful – so tainted that,
as a matter of law, it could create no
trademark rights -- warranting
cancellation of the registration of the
mark involved.

General Mills Inc. v. Healthy Valley Foods, 24 USPQ2d at
1274. Furthermore, “there must be some nexus between the
use of the mark and the alleged violation before the
unlawfulness of a shipment can be said to result in the
invalidity of a registration.” Id. citing Satinine Societa
v. P.A.B. Produits, 209 USPQ 958, 967 (TTAB 1981).
Despite applicant’s vigorous argument, we find that
applicant failed to show that there was a per se violation
of any law or regulation regarding the labeling of opposer’s
AGUARDIENTE BLANCO DEL VALLE aguardiente. Applicant
introduced documents showing that opposer’s distributors
sought approval for labels for, inter alia, AGUARDIENTE
BLANCO and for AGUARDIENTE BLANCO DEL VALLE CAUCA,19 and
asks us to infer that opposer did not seek approval or
properly label other brands such as AGUARDIENTE BLANCO DEL
VALLE. There is simply no basis for us to find that opposer
or its distributors did not properly seek federal approval
of opposer’s labels for AGUARDIENTE BLANCO DEL VALLE and
that those labels were not in compliance with the

19 Applicant’s Motion for the Taking of Judicial Notice, Exhibit
A.
Opposition No. 91150615
18
appropriate regulations. Applicant did not proffer any
testimony regarding the label applications and simply
because applicant did not introduce the label application(s)
for AGUARDIENTE BLANCO DEL VALLE does not mean that opposer
or its distributors did not apply for approval. In view of
the foregoing, applicant did not prove that opposer’s use
its mark is unlawful.
B. Abandonment.
In determining whether opposer has abandoned its mark,
Section 45 of the Trademark Act of 1946, 15 U.S.C. §1127,
provides that a mark is abandoned “[w]hen its use has been
discontinued with intent not to resume such use.” Applicant
has the burden of proving abandonment by a preponderance of
the evidence. Rivard v. Linville, 133 F.3d 1446, 45 USPQ2d
1374, 1376 (Fed. Cir. 1998).
Opposer introduced testimony and evidence that it has
been continuously using the mark AGUARDIENTE BLANCO DEL
VALLE since 1979.20 In support of its abandonment defense,
applicant submitted evidence showing that opposer used the
mark AGUARDIENTE BLANCO. Applicant did not submit any
evidence that proved that opposer ceased using AGUARDIENTE
BLANCO DEL VALLE. There is nothing that prohibits a party
from using different marks for the same product. Different

20 Applicant’s notice of reliance (opposer’s responses to
interrogatory Nos. 3 and 19A); Ospina Dep., pp. 24-25; Cruz Dep.,
Exhibits 27, 29, 30, 39, 40, 55, 56 and 62-65.
Opposition No. 91150615
19
marks, such as AGUARDIENTE BLANCO and AGUARDIENTE BLANCO DEL
VALLE, may signify different variations of the same product
(e.g., different levels of quality).
Applicant’s contends that the testimony of opposer’s
witnesses regarding opposer’s use of AGUARDIENTE BLANCO DEL
VALLE is entitled to little probative value because the
testimony is part of a pattern of perjury and fraud.
However, we find that there is no basis in this record for
that conclusion.
In view of the foregoing, we find that opposer has made
continuous use of its mark AGUARDIENTE BLANCO DEL VALLE and
has not abandoned it.
In view of our finding that opposer has priority of use
of its mark AGUARDIENTE BLANCO DEL VALLE and that there is a
likelihood of confusion, we need not address opposer’s claim
of likelihood of confusion with opposer’s trade name, nor do
we determine opposer’s cause of action under the Pan
American Convention or the Paris Convention.
Decision: The opposition is sustained and registration
to applicant is refused.