In In re Bear Creek Distillery, LLLP, the Trademark Trial and Appeal Board needed to decide whether wine and distilled spirits are related goods. Bear Creek Distillery applied to register the marks BEAR CREEK DISTILLERY and BEAR CREEK DISTILLERY & Design for “spirits; spirits and liqueurs; distilled spirits.” The Trademark Office refused registration of Bear Creek Distillery’s applications on the ground the marks were likely to cause confusion with a prior registered mark for BEAR CREEK in connection with “wine.”
The relatedness of goods factor “considers whether the consuming public may perceive [the respective goods and services of the parties] as related enough to cause confusion about the source or origin of the goods and services.” In re St. Helena Hosp., 113 USPQ2d 1082, 1086 (Fed. Cir. 2014). When analyzing the relatedness of the goods, “it is not necessary that the products of the parties be similar or even competitive to support a finding of likelihood of confusion.” On-line Careline Inc. v. Am. Online Inc., 56 USPQ2d 1471, 1475 (Fed. Cir. 2000). Rather, likelihood of confusion can be found if the respective products are related in some manner and/or if the circumstances surrounding their marketing are such that they could give rise to the mistaken belief that they emanate from the same source. Id. The issue is whether there is a likelihood of confusion as to the source of the goods, not whether purchasers would confuse the goods. L’Oreal S.A. v. Marcon, 102 USPQ2d 1434, 1439 (TTAB 2012). Additionally, the greater the similarity between an applicant’s mark and the cited registered mark, the less the degree of similarity between the applicant’s goods and the registrant’s goods that is required to support a finding of likelihood of confusion. In re Opus One Inc., 60 USPQ2d 1812, 1815 (TTAB 2001).
To prove relatedness, the Trademark Office offered 100 use-based, third-party registrations covering wine and some type of distilled spirits. The Trademark Office also offered Web pages from third-party websites that show the operation of a winery and distillery. Bear Creek Distillery offered evidence of wineries that do not distill spirits and distilleries that do not produce wine. However, the Trademark Trial and Appeal Board said “the question is not whether consumers would expect to order spirits at a winery or wine at a distillery, but whether wine and spirits are so related that purchasers would expect these goods to emanate from the same source if they were sold under the same or confusingly similar marks. In that respect, the issue is not the number of combination wineries/distilleries that produce wines and spirits under one label, but whether consumers would be familiar with the fact that there are combination wineries and distilleries, or companies that produce both types of goods, such that they would assume a connection between the two products.”
As trademark searchers, we can learn a lot from the many decisions being issued in the alcoholic beverage industry when it comes to relatedness of goods. We need to think about relatedness in terms of what consumers will perceive not from a purchasing decision. In other words, how a consumer ultimately comes to the decision to buy a particular product does not determine relatedness. Instead, it is what information is the consumer encountering about the products. What information consumers are encountering about two products will sometimes be contrary to our intuition about relatedness especially as new trends start to emerge.