The craft beer and spirits markets continue to grow at an astonishing rate. According to a Bloomberg article, there are eight times as many breweries in the U.S. as there were a decade ago, and seven times as many distilleries. This rapid growth is leading to the problem the Trademark Trial and Appeal Board recently dealt with in the In re Fiddlehead Brewing Company, LLC case.
Fiddlehead Brewing Company filed an application to register the mark MASTERMIND for “beer.” The Trademark Office refused registration on the ground that Fiddlehead Brewing’s mark was likely to cause confusion with the prior registered mark MASTERMIND VODKA for “spirits.”
The marks at issue were virtually identical, so the salient issue was whether beer is a related good to spirits, but more specifically vodka. The Board could not have more clearly stated that International Class Numbers are irrelevant when it comes to the relatedness of goods determination when it said:
The fact that the USPTO classifies Applicant’s beer in Class 32 and Registrant’s spirits in Class 33 does not establish that those goods are unrelated under § 2(d). *** The determination concerning the proper classification of goods or services is a purely administrative determination unrelated to the determination of likelihood of confusion.
If you are a trademark searcher and are looking at the International Class Numbers, STOP DOING IT. You need to dig deeper and look at the relatedness of goods and services, but we digress.
The Examining Attorney offered several websites of businesses operating a brewery and distillery under the same brand, and news articles discussing breweries that are also producing distilled spirits. The Board also cite prior decision after prior decision that held beer and other alcoholic beverages including wine are related goods. Accordingly, it is no surprise that the Board found Fiddlehead Brewing’s beer to be related to the owner of the cited mark’s “spirits.”
Despite the saturated nature of the alcoholic beverage market and numerous decisions from the Board on relatedness, breweries, distilleries, and wineries continue to hold a false hope that their case will be the one that does not get caught in the relatedness of goods trap. But the better strategy is to find an available mark. And the only way to do that is to pay attention to the relatedness factor, which is something BOB does for you.