Paul Jaboulet Ainev.S.P. Grossnickle, LLC dba Forty-Five North Vineyard and Winery

Trademark Trial and Appeal Board

Oct 31, 2012

No. 91197078 (T.T.A.B. Oct. 31, 2012)

Mailed:
October 31, 2012

United States Patent and Trademark Office
Trademark Trial and Appeal Board
________

Paul Jaboulet Aine
v.
S.P. Grossnickle, LLC dba Forty-Five North Vineyard and Winery
________
Opposition No. 91197078
to application Serial No. 77806650
filed on August 18, 2009
_______
Julie B. Seyler of Abelman, Frayne, Schwab for Paul Jaboulet Aine.
James D. Hall, Steven L. Smilay, and Christopher A. Johnson of Botkin Hall,
LLP for S.P. Grossnickle, LLC dba Forty-Five North Vineyard and Win-
ery.
_______
Before Quinn, Wolfson and Lykos, Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
S.P. Grossnickle, LLC dba Forty-Five North Vineyard and Winery (“ap-
plicant”) filed an application to register the mark displayed below

This Opinion is Not a
Precedent of the TTAB
Opposition No. 91197078

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for “wine” in International Class 33.1 The description of the mark is as fol-
lows: “The mark consists of [the] stylized [number] 45 with a stylized circle
around the same.”
Paul Jaboulet Aine (“opposer”) opposed the registration of applicant’s
mark on the grounds of priority of use and likelihood of confusion under Sec-
tion 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), with opposer’s previously
used and registered mark PARALLELE 45, in standard character form for
“wine” in International Class 33.2 Opposer’s pleaded registration includes the
following translation statement: “The English translation of ‘PARALLELE’ is
‘parallel.’” Applicant in its answer to the notice of opposition denied the sali-
ent allegations therein and asserted various affirmative defenses.
I. The Record
Pursuant to Trademark Rule 2.122(b), the record includes applicant’s
application file and the pleadings. In addition, the parties introduced the fol-
lowing:
A. Opposer’s Evidence

1. Opposer’s pleaded Registration No. 2682366;3

1 Application Serial No. 77806650, filed August 18, 2009, pursuant to Section 1(a) of
the Trademark Act, alleging March 15, 2008 as the date of first use anywhere and
July 4, 2008 as the date of first use in commerce.
2 Registration No. 2682366, registered on February 4, 2003, pursuant to Sections 1(a)
and 44(e) of the Trademark Act, based on French Registration No. 1240707 (which
expired on July 12, 2003). The registration alleges 1978 as the date of first use any-
where and in commerce; Sections 8 and 15 affidavits acknowledged and accepted.
3 Insofar as opposer made its pleaded registration of record with opposer’s notice of
opposition, the submission of its pleaded registration under notice of reliance was su-
perfluous.

Opposition No. 91197078

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2. Opposer’s First Notice of Reliance, dated September 19, 2011,
comprised of applicant’s answers to opposer’s first set of inter-
rogatories;

3. Opposer’s Second Notice of Reliance, dated September 19,
2011, comprised of applicant’s supplemental answers to op-
poser’s first set of interrogatories;

4. Opposer’s Third Notice of Reliance, dated September 22,
2011, comprised of print-outs from third-party websites pur-
suant to Trademark Rule 2.122(e), and Safer Inc. v. OMS In-
vestments, Inc., 94 USPQ2d 1031 (TTAB 2010); and

5. Opposer’s Fourth Notice of Reliance, dated September 27,
2011, comprised of the declaration of Martin Sinkoff, Director
of Marketing, Fine Wines of Frederick Wildman and Sons
Ltd., a company specializing in the importation and distribu-
tion of foreign wines in the United States, with Exhibits A-F
attached thereto comprised of a photograph of opposer’s first
bottle of wine sold in the United States, applicant’s answer to
opposer’s Interrogatory Nos. 5 and 11, a copy of the home
page of applicant’s website, www.fortyfivenorth.com, and cop-
ies of labels showing applicant’s use of its mark.4

B. Applicant’s Evidence

1. Applicant’s Notice of Reliance, dated November 29, 2011,
comprised of applicant’s declaration of Eric Grossnickle, Crea-
tive Director of applicant, and Exhibits 1-7 attached thereto
consisting of applicant’s trademark search report conducted
prior to the filing of its application, copies of third-party regis-
trations obtained from a private search company,5 a copy of a

4 The Board hereby approves the parties’ stipulation embodied in opposer’s notice of
reliance to, in lieu of taking testimony depositions, submit the testimony of its trial
witnesses by declaration. See Trademark Rule 2.121. For future edification, the
Board prefers that the parties file such stipulations as a separate, individual filing.
Nonetheless, the Board commends the parties for agreeing to this alternative method
for introducing trial testimony, which presumably saved time and expenses for both
parties.
5 Applicant is advised that it was unnecessary to submit the file history of the in-
volved application which is automatically of record. Trademark Rule 2.122(b)(1). See

Opposition No. 91197078

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photograph of one of opposer’s wine products, and copies of
excerpts from third-party websites.

II. The Parties

Opposer is a wine producer located and organized under the laws of
France. Opposer’s wines are imported and distributed in the United States by
Frederick Wildman and Sons Ltd. and sold to wholesalers as well as retail
stores and restaurants licensed to sell wine and alcoholic beverages in all 50
states. Sinkoff Declaration, ¶¶ 1 and 8. Opposer’s U.S. distributor has en-
gaged in a national advertising campaign in the United States on opposer’s
behalf, advertising opposer’s French wines in a variety of media including
print advertising in national magazines such as Wine Spectator as well as the
Internet. Sinkoff Declaration, ¶ 11.
Applicant, a domestic wine producer, is a limited liability company or-
ganized under the laws of the state of Indiana. Applicant owns and operates a
vineyard in Lake Leelanau, Michigan where approximately 90% of applicant’s
wine is sold through applicant’s tasting room. Opposer’s First Notice of Reli-
ance, Applicant’s Response to Interrogatory No. 6. Applicant also markets
and sells its wine via the Internet. Grossnickle Declaration, ¶ 12. According
to the record, applicant has made limited sales throughout the United States
via its domestic distributor primarily in Indiana. Opposer’s First Notice of
Reliance, Applicant’s Response to Interrogatory No. 5.

Venture Out Properties LLC v. Wynn Resorts Holdings LCC, 81 USPQ2d 1887, 1889
n.8 (TTAB 2007).
Opposition No. 91197078

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III. Standing
Opposer has demonstrated through the TARR printout made of record
with its notice of opposition that it is the owner of its pleaded registration and
that the registration is valid and subsisting. Because opposer’s registration is
of record, opposer has established its standing. See Cunningham v. Laser Golf
Corp., 222 F.3d 943, 55 USPQ2d 1842, 1844 (Fed. Cir. 2000); Lipton Indus-
tries, Inc. v. Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA
1982).
IV. Section 2(d) Claim
We will now consider opposer’s Section 2(d) claim.
A. Priority
Priority is not in issue in view of opposer’s ownership of a valid and
subsisting registration. King Candy, Inc. v. Eunice King's Kitchen, Inc., 496
F.2d 1400, 182 USPQ 108 (CCPA 1974).
B. Likelihood of Confusion
The remaining issue in this proceeding is likelihood of confusion. Op-
poser must establish that there is a likelihood of confusion by a preponderance
of the evidence. We base our determination under Section 2(d) on an analysis
of all of the probative evidence of record bearing on a likelihood of confusion.
In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567
Opposition No. 91197078

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(CCPA 1973) (“du Pont”). 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, however, two key considerations are the similarities be-
tween 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
(CCPA 1976). These factors, and the other relevant du Pont factors are dis-
cussed below.
1. The Goods
First we consider the goods. As identified, both opposer’s and appli-
cant’s goods consist of “wine.” Applicant attempts to distinguish its particular
brand of wine from opposer’s by pointing to the fact that while applicant only
produces wine domestically in the state of Michigan, opposer’s wine originates
from France. Applicant maintains that because both parties clearly display
the geographic origin of their respective wines on their product label, consum-
ers are unlikely to be confused as to their source.
Applicant’s arguments are unpersuasive. In an inter partes proceeding
before the Board, the issue of likelihood of confusion must be determined
based on an analysis of the goods recited in applicant’s application vis-à-vis
the goods identified in opposer’s pleaded registration. Cunningham v. Laser
Golf Corp., 55 USPQ2d at 1846; Canadian Imperial Bank v. Wells Fargo
Bank, 811 F.2d 1490, 1 USPQ2d 1783 (Fed. Cir. 1992). Because both opposer
and applicant have identified their goods as “wine,” with no geographic limita-
Opposition No. 91197078

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tions regarding their origin or other limitations as to type, for purposes of our
likelihood of confusion analysis, the goods are legally identical and include all
varietals of wines. See e.g., In re Bercut-Vandervoort & Co., 229 USPQ 763,
764 (TTAB 1986) (where both applicant’s and registrant’s goods were identi-
fied as “wine,” applicant not permitted to distinguish its French wine by ex-
trinsic evidence of higher quality and price). Thus, the fact that opposer’s
wine originates from France and applicant’s wine is domestically produced
has no bearing on our analysis. We remind applicant that this is not a federal
trademark infringement action but rather an administrative proceeding to de-
termine whether applicant is entitled to a federal registration for the goods as
identified in its application. Hence, the identical nature of the goods weighs
heavily in favor of finding a likelihood of confusion.
2. Trade Channels
Next we consider the ordinary channels of trade. Opposer has present-
ed testimony, through its U.S. distributor, that opposer’s and applicant’s
goods travel in the same trade channels and are likely to be sold in the same
retail and wholesale outlets. Sinkoff Declaration ¶¶ 30 and 33. Opposer tes-
tified that it is common for a single wine list in a restaurant located in the
United States to offer not only local, California or Mid-Western wines, but al-
so wines from other countries such as France, Italy, and Chile. Sinkoff Decla-
ration ¶ 9. In addition, opposer testified that it is common for wines sold at
different price points to be sold side by side. Sinkoff Declaration ¶ 10. Appli-
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cant contends, however, that because its wine is sold almost exclusively from
its tasting room located on the Leelanau Peninsula in Michigan it is unlikely
the same consumer will encounter both opposer’s and applicant’s wine in the
same trade channel.
We are unconvinced by applicant’s arguments. Because both of the
identifications of goods in the involved application and registration are unre-
stricted as to trade channels, we must presume that both parties’ identical
products travel in the same ordinary trade and distribution channels and will
be marketed to the same potential consumers. In re Elbaum, 211 USPQ 639,
640 (TTAB 1981), citing Kalart Co., Inc. v. Camera-Mart, Inc., 258 F.2d 956,
119 USPQ 139 (CCPA 1958). As the record evidence shows, the ordinary
trade channels for wine are retail stores specializing in wines, retail stores
specializing in the sale of all alcoholic beverages, general retail stores that are
licensed to sell wine, restaurants licensed to sell wine, and wholesalers.
Grossnickle Declaration, ¶ 8. Our findings regarding the ordinary trade
channels for the sale and distribution of wine are consistent with our prior
case law. See e.g., In re Bercut-Vandervoort & Co., supra.
Hence, this du Pont factor, the relevant trade channels, weighs in favor
of finding a likelihood of confusion.
3. Purchasers and Conditions of Sale
The fourth du Pont factor examines the conditions under which, and to
whom, sales are made. Purchaser sophistication may tend to minimize likeli-
Opposition No. 91197078

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hood of confusion. Conversely, impulse purchases of inexpensive items may
tend to have the opposite effect.
Applicant relies heavily on this factor, contending that all of its wines
are labeled to indicate their geographic origin and are marketed as a niche
product from Michigan’s wine country. Applicant asserts that its wine has
renown as a Northern Michigan regional product, and is purchased by so-
phisticated, discerning connoisseurs seeking wines only from that area.
Grossnickle Declaration, ¶ 16. Opposer, on the other hand, argues that
wines are relatively inexpensive, making them an impulse purchase. Not-
withstanding this assertion, opposer submits that even sophisticated pur-
chasers of wine are likely to assume that applicant’s and opposer’s wines
originate from the same source. In support thereof, opposer has introduced
evidence that foreign vineyards commonly enter into joint ventures with U.S.
vineyards to produce wines in the United States. See Sinkoff Declaration,
Ex. F. While applicant concedes that this practice may occur, it maintains
that because the labels of opposer’s and applicant’s respective wines do not
explicitly refer to any foreign joint ventures, consumers are unlikely to be-
lieve that applicant and opposer have entered into any collaborative ar-
rangements.
Again, we are not persuaded by applicant’s arguments. Because both
applicant’s involved application and opposer’s pleaded registration are unre-
stricted, we must assume that both applicant’s and opposer’s brands of wines
Opposition No. 91197078

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are sold to the same purchasers under the same conditions. The authority is
legion that the ordinary U.S. wine purchaser is relatively unsophisticated
and makes his or her wine-purchasing decisions under impulse. See e.g., In
re Bercut-Vandervoort & Co., 229 USPQ at 765.
However, even if we were to find under the record before us that pur-
chasers of wine are generally sophisticated and discerning, we would reach
the same conclusion. Sophisticated purchasers of wine may be aware that
U.S. and French wine producers do enter into collaborative arrangements,
and mistakenly believe that opposer’s particular brand of French wine ema-
nates from the same source as applicant. Cf. Palm Bay Imports Inc. v. Veuve
Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d
1689, 1696 (Fed. Cir. 2005) (“And even more sophisticated purchasers might
be aware that champagne houses offer both [champagne and sparkling wine]
under similar marks, and could easily conclude that VEUVE ROYALE was
Veuve Clicquot's sparkling wine”) (“Palm Bay”). We hasten to add, however,
that in a Board proceeding it is the marks we consider as opposed to how the
mark is used with any additional information on the labels or packaging.
In addition, even sophisticated purchasers are not immune from source
confusion, especially in cases such as the instant one involving similar
marks and identical goods. See In re Research Trading Corp., 793 F.2d 1276,
230 USPQ 49, 50 (Fed. Cir. 1986), citing Carlisle Chemical Works, Inc. v.
Hardman & Holden Ltd., 434 F.2d 1403, 168 USPQ 110, 112 (CCPA 1970)
Opposition No. 91197078

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(“Human memories even of discriminating purchasers...are not infallible.”).
The conditions of sale and nature of the prospective consumers therefore fa-
vor finding a likelihood of confusion.
4. The Marks
Next, we turn to the du Pont likelihood of confusion factor regarding
the similarity or dissimilarity of the marks in their entireties as to appear-
ance, sound, connotation and commercial impression. See Palm Bay, 73
USPQ2d at 1692. “[T]he test is not whether the marks can be distinguished
when subjected to a side-by-side comparison, but rather whether the marks
are sufficiently similar in terms of their overall commercial impression so that
confusion as to the source of the goods offered under the respective marks is
likely to result.” H.D. Lee Co. v. Maidenform Inc., 87 USPQ2d 1715, 1727
(TTAB 2008). Where, as in the present case, the marks are used on identical
goods, the degree of similarity between the marks that is necessary to support
a finding of likely confusion declines. Century 21 Real Estate Corp. v. Century
Life of America, 970 F.2d 874, 23 USPQ2d 1698 (Fed. Cir. 1992).
Applicant argues that consumers, in encountering opposer’s mark when
used in conjunction with the French name of the vintner on opposer’s label,
will primarily notice the French spelling of the English word “parallel,” and
place less emphasis on the numerical designation “45.” We disagree, finding
that the position applicant advocates fails to consider both opposer’s and ap-
plicant’s marks as a whole.
Opposition No. 91197078

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As noted above, opposer’s pleaded registration includes a statement
that the English translation of the term "PARALLELE" in opposer’s mark is
“parallel.” Applying the doctrine of foreign equivalents, the “ordinary Ameri-
can consumer” knowledgeable of French encountering opposer’s mark will
“stop and translate” PARALLELE 45 as “45th Parallel” in English. See Palm
Bay, 73 USPQ2d at 1696. See also In re La Peregrina Limited, 86 USPQ2d
1645 (TTAB 2008).
The numeric designation “45” is encapsulated in a circle in applicant’s
design mark. The evidence of record shows that applicant selected its particu-
lar circle design and numeric designation “45” to indicate the geographic loca-
tion of its vineyard. According to applicant’s own testimony: “We chose the 45
and design mark for our wines to indicate that our vineyard is located at 45
degrees North latitude.” Grossnickle Declaration, ¶ 7. As further elaborated
by applicant’s response to the interrogatory “[d]escribe the specific reasons for
selection of Applicant’s Mark”:
The mark is a literal representation of Applicant’s winery name
(i.e. Forty-Five North) which refers to the fact that the 45º0’N lat-
itudinal line runs directly through Applicant’s vineyard property.
The number “45” in the mark is simply the numeric form of the
number in Applicant’s winery name.

The circular shape refers to a globe while the arrow at the top in-
dicates “North.” Together, the circular shape and arrow are
meant to resemble that of a compass.

Opposer’s Second Notice of Reliance, Applicant’s Supplemental Response
to Interrogatory No. 3. We therefore find that when considering applicant’s
Opposition No. 91197078

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mark as a whole, prospective consumers encountering the mark will perceive
it as “45 degrees north” Similarly, when viewing opposer’s pleaded mark as a
whole, prospective U.S. consumers familiar with the French language, upon
seeing PARALLELE 45, will recognize it as French for “45th Parallel” or 45
degrees latitude. Thus, based on the record evidence, we find that applicant’s
and opposer’s marks, when considered as a whole, respectively create the
highly similar commercial impressions of denoting the geographic locations of
45 degrees latitude As such, we find that the first du Pont factor weighs in
favor of finding a likelihood of confusion.
5. Fame
We now consider the fifth du Pont factor of fame. Fame of the prior
mark plays a dominant role in likelihood of confusion cases featuring a fa-
mous mark. Bose Corp. v. QSC Audio Products Inc., 293 F.3d 1367, 63
USPQ2d 1303 (Fed. Cir. 2002); Recot Inc. v. M.C. Becton, 214 F.3d 1322, 54
USPQ2d 1894 (Fed. Cir. 2000). Because of the extreme deference accorded to
a famous mark in terms of the wide latitude of legal protection it receives, and
the dominant role fame plays in the likelihood of confusion analysis, it is the
duty of the party asserting fame to clearly prove it. Lacoste Alligator S.A. v.
Maxoly Inc., 91 USPQ2d 1594, 1597 (TTAB 2009); Leading Jewelers Guild
Inc. v. LJOW Holdings LLC, 82 USPQ2d 1901, 1904 (TTAB 2007).
Opposer asserts that its PARALLELE 45 mark has achieved substan-
tial fame and recognition as a result of its continuous use in the United States
Opposition No. 91197078

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since 1967. Sinkoff Declaration, ¶ 21. Opposer also points to its sales of ap-
proximately 600,000 bottles of wine in the United States over a ten year peri-
od for an estimated revenue of $6 million. Sinkoff Declaration, ¶¶ 17-18. As
evidence of consumer recognition, opposer has submitted the testimony of its
U.S. distributor that two wine industry publications, Wine Spectator and Wine
& Spirit Magazines, recognize opposer’s brand as “best value and best buy.”
Id. at ¶ 21.
We find that on this record, opposer has failed to meet its burden. Op-
poser’s sales figures, revenues, promotional efforts and media exposure are
not at the level required for fame. See, e.g, Miss Universe L.P. v. Community
Marketing Inc., 82 USPQ2d 1562, 1566 (TTAB 2007). Notably, opposer has
not submitted evidence regarding sales figures of competitors so that we can
place opposer’s evidence in proper context. Cf. Bose Corp. v. QSC Audio
Products Inc., 63 USPQ2d at 1309. In addition, the only evidence of media
exposure opposer has submitted consists of testimony from its U.S. distributor
that two industry publications generally recognize opposer’s wine as a “good
buy.” Opposer did not submit representative samples of print advertisements
circulated over a substantial period of time on a national scale, nor did oppos-
er submit evidence of promotional activities in other media such as television
or event promotion. Compare Palm Bay, supra, (VEUVE CLICQUOT found
famous amongst purchasers of champagne and sparkling wine based upon
sale in 8000 restaurants nationwide, liquor stores, wine shops and other retail
Opposition No. 91197078

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establishments; extensive promotional campaign consisting of print adver-
tisements in general interest magazines and in wine specialty magazines, ra-
dio ads, point-of-sale displays, wine tastings; unsolicited recognition in New
York Times, Boston Globe, Money Magazine). It is also problematic that op-
poser has failed to submit any evidence of annual advertising expenditures in
the U.S. market over a substantial period of time. Thus, while opposer may
enjoy some degree of recognition in the wine industry, opposer’s evidence not-
ed above falls short of establishing the fame of opposer's mark PARALLELE
45 as required under the fifth du Pont factor. This factor is therefore neutral.
6. Strength of the Marks/Scope of Protection/Third-Party Uses
The sixth du Pont factor focuses on the number and nature of similar
marks in use on similar goods. Applicant argues that the widespread use of
the numeric designation “45” for wine implies that the involved marks are
part of a “crowded field” entitled only to a narrow scope of protection. In sup-
port thereof, applicant has submitted, as exhibits to testimony, print-outs of
third-party registrations for wines which contain “45” as a component of their
respective mark obtained from a private trademark search company. Gross-
nickle Declaration, ¶ 8, Ex. 2. Applicant contends that “due to the third-party
registrations of ‘45’ on wine, consumers will look to the differences between
[applicant’s and opposer’s] marks and are unlikely to be confused….” Appli-
cant’s Brief, p. 24.
Opposition No. 91197078

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We are not persuaded by applicant’s evidence. Because third-party reg-
istrations of marks are not evidence that the registered marks are in use, they
are of limited probative value for demonstrating weakness of the marks. See
In re Mighty Leaf Tea, 601 F.3d 1342, 94 USPQ2d 1257, 1259 (Fed. Cir. 2010).
See also 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Compe-
tition § 11:89 (4th ed. 2009) (“The mere citation of third party registrations is
not proof of third party uses for the purpose of showing a crowded field and
relative weakness.”). Applicant introduced no evidence that these trademarks
were actually used by third parties, that they were extensively promoted or
that they were well recognized by consumers. As such, we find this du Pont
factor to be neutral.
7. Actual Confusion/Contemporaneous Use
Regarding the seventh and eighth du Pont factors, applicant argues
that because applicant’s mark has coexisted with opposer’s mark for four
years without any instances of actual confusion, the likelihood of confusion is
“minute.” Applicant’s Brief, p. 24. Opposer, on the other hand, maintains
that likelihood of confusion, not actual confusion, is the proper test.
One plausible explanation for the lack of actual confusion and the par-
ties’ coexistence in the wine industry is the fact that applicant sells its wines
almost exclusively from its tasting room in Michigan. In any event, however,
opposer is correct that it is not required to demonstrate actual confusion in
order to prevail on its claim of likelihood of confusion. See Giant Food, Inc. v.
Opposition No. 91197078

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Nation's Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 396 (Fed. Cir. 1983).
Indeed, as the Board has often stated, the lack of evidence of actual confusion
carries little weight in a Board proceeding. J.C. Hall Co. v. Hallmark Cards,
Inc., 340 F.2d 960, 144 USPQ 435, 438 (CCPA 1965). Accordingly, the sev-
enth and eighth du Pont factor of the length of time during and conditions un-
der which there has been contemporaneous use without evidence of actual
confusion is considered neutral.
8. Applicant’s Prior Knowledge/Bad Faith
Opposer contends that applicant had knowledge of opposer’s previously
used mark after receiving a trademark search report listing opposer’s regis-
tered mark. Implicit in opposer’s assertion is that applicant acted in bad faith
in selecting its mark. We disagree. Applicant's prior knowledge of the oppos-
er’s mark, without further evidence, does not constitute bad faith. See Action
Temporary Services Inc. v. Labor Force Inc., 870 F.2d 1563, 10 USPQ 1307
(Fed. Cir 1989). See also Ava Enterprises, Inc. v. Audio Boss USA, Inc., 77
USPQ2d 1783 (TTAB 2006). This factor is therefore neutral.
In sum, the relevant du Pont factors – the similarity of the marks, the
identical goods, trade channels and class of purchasers, and nature of the
wine-purchasing public -- weigh in favor of finding a likelihood of confusion.
We conclude that consumers familiar with opposer’s mark PARALLELE 45
for wine would be likely to believe, upon encountering applicant’s design mark
for wine, that the goods originate with or are somehow associated with or
Opposition No. 91197078

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sponsored by the same wine producer, notwithstanding the fact that both
wines originate from different countries.
Lastly, to the extent that any of the points argued by applicant raises a
doubt about our finding of a likelihood of confusion, we resolve that doubt, as
we must, in favor of opposer as the prior user and registrant. See Giant Food,
Inc. v. Nation’s Foodservice, Inc., 710 F.2d 1565, 218 USPQ 390, 395 (Fed. Cir.
1983).
Decision: The opposition is sustained, and registration to applicant is
refused.