Last year, the Minnesota Vikings started a national debate after celebrating a touchdown against the Chicago Bears by playing a quick game of Duck Duck Gray Duck, or is it Duck Duck Goose? ESPN reported that Minnesota is the only state in the union that calls the game duck duck gray duck. Well one group of Minnesotans decided to capitalize on this distinction and produced a gluten-free vodka called GRAY DUCK vodka.
When we hear Chad Greenway – former Minnesota Viking linebacker – promoting GRAY DUCK vodka on The Power Trip morning show our initial reaction was that this brand is going to be short lived. Grey Goose vodka would certainly object to this mark. The goods are identical, so less similarity between the marks is necessary for a likelihood of confusion to exist. The different spelling of GRAY versus GREY is a small difference that is unlikely to overcome the identical nature of the goods and so is the substitution of DUCK for GOOSE.
The one saving grace for the GRAY DUCK mark would be in the dilution that GREY GOOSE has allowed to creep into the market. The GREY GOOSE brand peacefully co-exists with GRAY WHALE vodka, GREY WHALE vodka, and GRAYCLIFF vodka. GRAY DUCK thought it belongs on this list as well and so it filed a trademark application for its mark.
Surprisingly, the GRAY DUCK application sailed through the examination phase and did not receive a single Office Action from the Trademark Office. On June 26, 2018, the GRAY DUCK application was published for opposition. Bacardi & Company Limited did not oppose the registration of the GRAY DUCK application and on August 21, 2018 the Trademark Office issued the Notice of Allowance, which starts a six month period to submit evidence of use of the GRAY DUCK mark to the Trademark Office. Once this evidence is submitted, the registration certificate will issue.
This does not mean that GRAY DUCK vodka is out of the woods. The brand is vulnerable to a cancellation proceeding for five years after the registration certificate issues.