Schram Vineyards LLC

Trademark Trial and Appeal BoardSep 25, 2020

88128693 (T.T.A.B. Sep. 25, 2020)

This Opinion is not a Precedent of the TTAB Mailed: September 25, 2020 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Schram Vineyards LLC _____ Serial No. 88128693 _____ Wesley W. Malherek of Kelly Holt & Christenson PLLC for Schram Vineyards LLC. Thomas P. Young, Trademark Examining Attorney, Law Office 120, David Miller, Managing Attorney. _____ Before Lykos, Shaw and Heasley, Administrative Trademark Judges. Opinion by Shaw, Administrative Trademark Judge: Schram Vineyards LLC (“Applicant”) seeks registration on the Principal Register of the standard character mark SCHRAM HAUS for “Beer,” in International Class 32.1 The translation statement reads: “The English translation of ‘HAUS’ in the mark is ‘HOUSE’.” 1 Application Serial No. 88128693, filed on September 24, 2018, is based on Applicant’s allegation of a bona fide intent to use the mark in commerce, pursuant to Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b). Applicant subsequently filed (and the Office accepted) an amendment to allege use, averring that the mark was first used anywhere on October 12, 2018 and first used in commerce on May 3, 2019. Serial No. 88128693 - 2 - Registration has been refused under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), on the ground that Applicant’s mark, when used in connection with “beer,” so resembles the standard character mark SCHRAMM’S MEAD, registered on the Supplemental Register for “Mead;2 [and] Hard cider,” in International Class 33, as to be likely to cause confusion, mistake or deception.3 When the refusal was made final, Applicant appealed and requested reconsideration. The Examining Attorney denied the request for reconsideration, and the appeal resumed. Both Applicant and the Examining Attorney filed briefs. We affirm the refusal to register. I. 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) (“DuPont”) cited in B&B Hardware, Inc. v. Hargis 2 Mead is defined as an “alcoholic drink of fermented honey and water.” Oxford- dictionaries.com, Office Action of January 7, 2019, TSDR 8. 3 Registration No. 4770528, registered on July 7, 2015; MEAD disclaimed apart from the mark as shown. The registration, as issued, included “Alcoholic beverages except beers” and “wine.” These goods were deleted from the registration by Registrant on May 22, 2018 under Section 7 of the Trademark Act, 15 U.S.C. § 1057. See also TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) § 1402.12 (Oct. 2018) (“The Post Registration Section of the USPTO uses single square brackets to indicate that goods/services have been deleted from a registration[.]”). Page references herein to the application record refer to the online database of the USPTO’s Trademark Status & Document Retrieval (“TSDR”) system. All citations to documents contained in the TSDR database are to the downloadable .pdf versions of the documents in the USPTO TSDR Case Viewer. See, e.g., In re Peace Love World Live, LLC, 127 USPQ2d 1400, 1402 n.4 (TTAB 2018). References to the briefs on appeal refer to the Board’s TTABVUE docket system. Before the TTABVUE designation is the docket entry number, and after this designation are the page references, if applicable. Serial No. 88128693 - 3 - Indus., Inc., 135 S. Ct. 1293, 113 USPQ2d 2045, 2049 (2015); see also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir. 2003). We must consider each DuPont factor for which there is evidence and argument. See, e.g., In re Guild Mortg. Co., 912 F.3d 1376, 129 USPQ2d 1160, 1162-63 (Fed. Cir. 2019). In any likelihood of confusion analysis, two key considerations are the similarities between the marks and the similarities between the goods or services. See In re Chatam Int’l Inc., 380 F.3d 1340, 71 USPQ2d 1944, 1945-46 (Fed. Cir. 2004); 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.”); see also In re i.am.symbolic, llc, 866 F.3d 1315, 123 USPQ2d 1744, 1747 (Fed. Cir. 2017) (“The likelihood of confusion analysis considers all DuPont factors for which there is record evidence but ‘may focus … on dispositive factors, such as similarity of the marks and relatedness of the goods’”) (quoting Herbko Int’l, Inc. v. Kappa Books, Inc., 308 F.3d 1156, 64 USPQ2d 1375, 1380 (Fed. Cir. 2002)). A. The similarity or dissimilarity of the marks in their entireties in terms of appearance, sound, connotation and commercial impression First, we consider the similarity of the marks. In comparing the marks we must consider their appearance, sound, connotation and commercial impression. Palm Bay Imps. Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d 1689, 1692 (Fed. Cir. 2005). “Similarity in any one of these elements may be sufficient to find the marks confusingly similar.” In re Inn at St. John’s, LLC, 126 USPQ2d 1742, 1746 (TTAB 2018) (citing In re Davia, 110 USPQ2d 1810, 1812 (TTAB Serial No. 88128693 - 4 - 2014)), aff’d per curiam, 777 F. App’x 516, 2019 BL 343921 (Fed. Cir. 2019); accord Krim-Ko Corp. v. Coca-Cola Bottling Co., 390 F.2d 728, 156 USPQ 523, 526 (CCPA 1968) (“It is sufficient if the similarity in either form, spelling or sound alone is likely to cause confusion.”) (citation omitted). Although marks must be considered in their entireties, one feature of a mark may be more significant than another, and it is not improper to give more weight to this dominant feature in determining the similarity of the marks. In re Viterra Inc., 671 F.3d 1358, 101 USPQ2d 1905, 1908 (Fed. Cir. 2012); In re Nat’l Data Corp., 753 F.2d 1056, 224 USPQ 749, 751 (Fed. Cir. 1985) (“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 consideration of the marks in their entireties. Indeed, this type of analysis appears to be unavoidable.”). Applicant’s mark is SCHRAM HAUS. Registrant’s mark is SCHRAMM’S MEAD. Both Applicant and the Examining Attorney agree that SCHRAM and SCHRAMM are surnames.4 As noted above, HAUS translates to “house” which is defined, inter alia, as a “facility, such as a theater or restaurant, that provides entertainment or food for the public”.5 Applicant admits that “‘SCHRAM HAUS’ is likely to bring to mind a house/location owned by the Schram family selling beer when applied to 4 Applicant’s Br., p. 5, 12 TTABVUE 6; Examining Attorney’s Br., 14 TTABVUE 7. 5 Https://www.ahdictionary.com/word/search.html?q=house, Office Action of January 7, 2019, TSDR 48. Serial No. 88128693 - 5 - beer.’”6 In Registrant’s mark, MEAD has been disclaimed because it is the generic name for Registrant’s goods, namely, mead. We find the surnames SCHRAM and SCHRAMM’S to be the dominant elements of the respective marks. The words HAUS and MEAD are less distinctive because they come after the surnames. See Presto Prods. Inc. v. Nice-Pak Prods., Inc., 9 USPQ2d 1895, 1897 (TTAB 1988) (“[I]t is often the first part of a mark which is most likely to be impressed upon the mind of a purchaser and remembered”). In addition, HAUS and MEAD are subordinate to the surnames because they characterize some element of the respective goods. That is, HAUS suggests a place of business or “bring[s] to mind a house/location owned by the Schram family selling beer .”7 MEAD is entitled to less weight because it is the generic name for one of Registrant’s goods, i.e., mead. See Chatam Int’l, 71 USPQ2d at 1944 (descriptive terms are properly given less weight). When we consider the marks in their entireties, we find that they are similar in several ways. In terms of sound, both marks begin with a surname, SCHRAM or SCHRAMM’S, followed by a single syllable word. The fact that the surname SCHRAMM’S in Registrant’s mark has an additional letter “M” and is in possessive form does little to distinguish the likely pronunciation. 6 Applicant’s Br., p. 6, 12 TTABVUE 7. 7 Id. Serial No. 88128693 - 6 - Applicant argues that SCHRAM and SCHRAMM “are pronounced differently due to the different emphasis on the vowel in combination with the ‘M’ or ‘MM.’”8 It is well settled, however, that there is no correct pronunciation of a mark. See Viterra, 101 USPQ2d at 1911 (“[T]here is no correct pronunciation of a trademark, and consumers may pronounce a mark differently than intended by the brand owner.”). In terms of connotation and commercial impression, the marks are similar inasmuch as both are variations of a surname, SCHRAM or SCHRAMM, combined with a term associated with alcoholic beverages. Thus, SCHRAM HAUS and SCHRAMM’S MEAD both suggest an enterprise or brewery named after an individual or family with the name SCHRAM or SCHRAMM as the source of the goods. Given the very slight difference in spelling between the surnames SCHRAM and SCHRAMM, we find it likely that prospective purchasers familiar with Registrant’s mark for mead will understand Applicant’s mark as indicating that Applicant’s beer comes from a brewery connected with Registrant. On balance, we find that the basic similarity between the marks resulting from the surname SCHRAM or SCHRAMM in the marks outweighs the dissimilarity resulting from HAUS or MEAD. Applicant argues that the initial similarity of SCHRAM and SCHRAMM’S, “does not mean that the stark differences between HAUS and MEAD can be ignored. The MEAD term included in the SCHRAMM’S MEAD mark would serve to bolster the . . . 8 Id. Serial No. 88128693 - 7 - arguments related to the distinctness of the goods.”9 Although we agree that the words HAUS and MEAD cannot be ignored, this argument is nevertheless unpersuasive. It is not necessary that the marks convey “identical” connotations and commercial impressions; rather it is only necessary that the connotations and commercial impressions be similar. DuPont, 177 USPQ at 567. Here, although they are different words, HAUS and MEAD both convey a similar association with alcoholic beverages, beer or mead in particular. As discussed above, when considered in their entireties, SCHRAM HAUS and SCHRAMM’S MEAD create similar connotations and commercial impressions of an alcoholic beverage enterprise associated with a family named SCHRAM or SCHRAMM. In terms of appearance we note that both marks, being in standard characters, are not limited to any particular font style, size, or color and, therefore, could be used in a typeface similar to each other. See, e.g., Viterra, 101 USPQ2d at 1908 (holding that the specific font style of a mark cannot serve as the basis to distinguish it from a mark in standard character form). Moreover, consumers are not likely to note or remember the slight difference in spelling of SCHRAM and SCHRAMM’S so as to distinguish the marks. Applicant argues that the difference in spelling of SCHRAM and SCHRAMM is sufficient to distinguish the marks: “one would not be confused as to the source of the goods because one would not think a surname from the same commercial entity would 9 Applicant’s Br., p. 4, 12 TTABVUE 5. Serial No. 88128693 - 8 - be spelled two different ways.”10 We disagree. We find it unlikely that consumers would distinguish the marks because of the slight difference in spelling of SCHRAM versus SCHRAMM. See Weiss Assoc., Inc. v. HRL Assocs., 902 F.2d 1546, 14 USPQ2d 1840, 1841 (Fed. Cir. 1990) (“It is especially hard to distinguish between TMS and TMM when the marks only differ by the last letter.”); Mag Instr. Inc. v. Brinkmann Corp., 96 USPQ2d 1701, 1714-15 (TTAB 2010) (difference of a single letter does not suffice to distinguish MAG STAR from MAXSTAR). In other words, under actual marketing conditions, consumers do not necessarily have the luxury of making side - by-side comparisons between marks, and must rely upon their imperfect recollections. This DuPont factor weighs in favor of a finding of likelihood of confusion. B. Similarity of the Goods and Channels of Trade We next address the second and third DuPont factors, “[t]he similarity or dissimilarity and nature of the goods . . . as described in an application or registration” and “[t]he similarity or dissimilarity of established, likely-to-continue trade channels.” DuPont, 177 USPQ at 567. We note that the goods need not be identical or even competitive to find a likelihood of confusion. See On-line Careline Inc. v. Am. Online Inc., 229 F.3d 1080, 56 USPQ2d 1471, 1475 (Fed. Cir. 2000). Applicant’s goods are beer and Registrant’s goods are mead and hard cider. The Examining Attorney argues that these goods are “highly related as [they] are similar 10 Id. at 5, 12 TTABVUE 6. Serial No. 88128693 - 9 - in nature, commonly emanate from the same commercial entity, and travel through the same channels of trade.”11 To support the refusal, the Examining Attorney introduced excerpts from approximately twenty third-party websites showing that beer and mead or hard cider are sometimes produced by the same establishment, sold to consumers on-site in tasting rooms or online, sold regionally, or marketed under the same mark. The following excerpts are the most pertinent:  Dueling Dogs – Produces a variety of wheat and fruit-based beers as well as meads and ciders under its mark, which are all promoted on its website to consumers of alcoholic beverages as featuring local, farm-fresh ingredients.12  Big Lost Meadery – Produces various styles of mead and fermented honey beverages as well as craft beers under its mark, which are marketed and sold on its website, through regional stores, and offered on tap in its meadery and brewery.13  Cellarmen’s – Produces meads, ciders, and beers under its mark, which are offered in a tasting room and sold online together under the category of “Beverages” on its website.14  B. Nektar – Produces meads, ciders, and beers, which are marketed and sold on its website and in its taproom.15 11 Examining Attorney’s Br., 14 TTABVUE 7. 12 Office Action of May 29, 2019, TSDR 3-9. 13 Id. at 13-19. 14 Id. at 20-22. 15 Id. at 23-28. Serial No. 88128693 - 10 -  Dogfish Craft Brewery – Produces both cider and beers, which are marketed and sold on its website, and in its tasting room and restaurant.16  East Aurora Brewery – Produces both cider and beers.17  Kuhnhenn Brewing Co. – Produces bottled meads and beer under its mark, which are available for purchase on its website.18  Bottlehouse – Produces beer, mead, and cider under its mark, which is available on tap and in bottles in its three taprooms.19  Jack Russell Meadery and Brewery – Produces beer, mead, and cider, which are sold in its tasting room and for take-away.20  Appalachian Mountain Brewery – Produces cider and beers, which are offered on tap, and in bottles and cans.21  One Barrel Brewing – Offers a “wide variety of beers and ciders” which are available “all across Wisconsin.”22  Wild Man Brewing Company – Produces beer, mead, and hard cider under its mark, which are marketed together on its website.23 16 Id. at 43-47. 17 Id. at 56-57. 18 Office Action of September 17, 2019, TSDR 3-10. 19 Id. at 22-32. 20 Id. at 33-40. 21 Id. at 41-64. 22 Id. at 65-70. 23 Denial of Request for Reconsideration of March 30, 2020, TSDR 3-7. Serial No. 88128693 - 11 -  Boiler Brewing Company – Produces a variety of alcoholic beverages, including beer, cider, and mead, under its mark, which are marketed on its website and available for purchase on tap and in bottles in its taprooms.24  Clouds Brewing – Produces beers, such as lagers and porters, as well as meads under its mark, which are marketed on its website under the category of “drinks”.25 The webpage excerpts introduced by the Examining Attorney demonstrate that beer and mead or hard cider may be produced by a single establishment, and offered to customers for tasting or sale onsite, distributed regionally, or sold online. These excerpts support a finding that beer, mead and hard cider are related products that consumers encounter emanating from the same source and under the same mark. See, e.g., In re Davey Prods. Pty Ltd., 92 USPQ2d 1198, 1202-04 (TTAB 2009); In re Toshiba Med. Sys. Corp., 91 USPQ2d 1266, 1268-69 (TTAB 2009). Applicant argues that the Examining Attorney’s “evidence presented does not provide evidence that these goods commonly emanate from the same commercial entity nor does the evidence demonstrate the goods are commonly sold under the same mark. The evidence on record shows these entities are the rare exception and are not commonplace in the United States.”26 This argument is unpersuasive. For 24 Id. at 8-17. 25 Id. at 18-22. 26 Applicant’s Br., p. 2-3, 12 TTABVUE 3-4. Applicant also argues that Registrant cannot use its mark on hard cider because “[t]he use of SCHRAMM’S MEAD on any product other than a mead (such as a hard cider) would be illegal under Federal Law.” Id. at 2, 12 TTABVUE 3. This argument is an impermissible collateral attack on the validity of the registration, which Serial No. 88128693 - 12 - goods to be related, it is not necessary that in a majority of cases they emanate from the same source under the same mark. It is enough that “the respective products are related in some manner and/or . . . the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source.” Coach Servs., Inc. v. Triumph Learning LLC, 668 F.3d 1356, 101 USPQ2d 1713, 1722 (Fed. Cir. 2012) (quoting 7-Eleven Inc. v. Wechsler, 83 USPQ2d 1715, 1724 (TTAB 2007)). Here, the record establishes that consumers will encounter commonly produced beers, meads, and hard cider when visiting tasting rooms. Consumers also will encounter beers, meads, and hard cider offered by the same source online because many of these producers also sell their products online. Thus, the evidence shows at least two ways that consumers will encounter beers, meads, and hard cider produced by a single entity and offered under a single mark, often a house mark. The fact that many breweries do not produce mead or hard cider does not overcome the fact that a significant number of breweries do brew mead or hard cider, and sell the products under the same mark as their beer. Moreover, Applicant’s own evidence suggests that the popularity of mead is growing. A web page except from the American Meadmakers Association claims that the number of commercial mead meaderies “has increased from approximately 30 in 2003, to about 200 in 2013, and now close to 300 in early 2016[.]”27 we cannot entertain in the absence of a petition to cancel it. See, e.g., In re Fiesta Palms, LLC, 85 USPQ2d 1360, 1363 (TTAB 2007) and cases cited therein. 27 Applicant’s Response to Office Action of September 10, 2019, TSDR 13-15. Serial No. 88128693 - 13 - Although each case must be decided on its own record, we often have held that beer and other alcoholic beverages may be related goods for purposes of a likelihood of confusion analysis. See, e.g., Chatam Int’l, 71 USPQ2d at 1947-48 (tequila related to beer or ale); In re Majestic Distilling Co., Inc., 65 USPQ2d at 1204 (malt liquor related to tequila despite the fact that “malt liquor is a brewed product, whereas tequila is distilled”); Anheuser-Busch, LLC v. Innvopak Sys. Pty Ltd., 115 USPQ2d 1816, 1826-27 (TTAB 2015) (wine related to beer); In re Kysela Pere et Fils Ltd., 98 USPQ2d 1261 (TTAB 2011) (wine related to beer); In re Sailerbrau Franz Sailer, 23 USPQ2d 1719, 1720 (TTAB 1992) (beer related to sweet wine); Krantz Brewing Corp. v. Henry Kelly Importing & Distrib. Co. Inc., 96 USPQ 219 (Examiner in Chief 1953) (wine related to beer); Fruit Indus., Ltd. v. Ph. Schneider Brewing Co., 146 F.2d 310, 46 USPQ 487 (Commr. of Patents 1940) (beer related to wine). In finding that different types of alcoholic beverages are related, the Board has observed that “[a] typical consumer of alcoholic beverages may drink more than one type of beverage and may shop for different alcoholic beverages in the same liquor store. Moreover, a person may serve more than one kind of alcoholic beverage before or during a meal or at a party.” Schieffelin & Co. v. Molson Cos. Ltd., 9 USPQ2d 2069, 2073 (TTAB 1989) (finding malt liquor and Cognac brandy to be related under the second DuPont factor, even though “we have no doubt that purchasers are not likely to consume a malt liquor thinking that it is Cognac brandy”). Considering the channels of trade and classes of purchasers, in the absence of any express limitations in the application or registration, we must presume that beers, Serial No. 88128693 - 14 - meads, and hard cider travel through all normal channels of trade and are offered and sold to all of the usual customers for such goods, namely ordinary adult consumers of alcoholic beverages. Anheuser-Busch, 115 USPQ2d at 1825-26. These channels include liquor stores, bars and restaurants, and (depending on the jurisdiction) supermarkets and convenience stores. In re Bay State Brewing Co., 117 USPQ2d 1958, 1960 (TTAB 2016); Anheuser-Busch, 115 USPQ2d at 1827; In re Sailerbrau, 23 USPQ2d at 1720. As shown by the web page excerpts, beers, meads, and hard cider also are sold alongside each other in tasting rooms, regionally, or online. For the foregoing reasons, we find that beers and meads and hard ciders are related goods that travel through the same channels of trade to the same class of consumers. The second and third DuPont factors weigh in favor of finding a likelihood of confusion. C. Balancing the factors We have carefully considered all of the evidence and arguments of record relevant to the pertinent DuPont likelihood of confusion factors. Given the similarity of the marks, the relatedness of the goods and their overlapping channels of trade and classes of consumers, we find that the Office has met its burden in showing a likelihood of confusion between Applicant’s mark and the cited mark. Decision: The refusal to register Applicant’s mark under Section 2(d) of the Trademark Act is affirmed.