IP Law Daily, TRADEMARK—TTAB: LOGGERHEAD DISTILLERY marks confusable with LOGGERHEAD LANDING for bar services, (Mar 29, 2021)

By Kevin M. Finson, J.D.

Consumers would likely view LOGGERHEAD DISTILLERY for distilled spirits and LOGGERHEAD LANDING for bars and cocktail lounges as emanating from the same source.

The proposed mark LOGGERHEAD DISTILLERY was likely to cause confusion with the registered mark LOGGERHEAD LANDING when the former was to be used with distilled spirits and the latter with bar and lounge services, the Trademark Trial and Appeal Board has held. The goods and services of each trademark holder were related enough to cause a consumer to believe they emanated from the same sourceb(In re Loggerhead Distillery, LLC, March 24, 2021, Heasley, D.).

Loggerhead Distillery, LLC (Loggerhead) sought registration on the principal register of the standard character mark LOGGERHEAD DISTILLERY and a composite mark containing the same words for use with distilled spirits and alcohol distillery services in International Class 40. The Examining Attorney refused registration on the grounds of likelihood of confusion with the registered mark LOGGERHEAD LANDING for bar and cocktail lounge services, cafe services, and restaurant services in International Class 43. Loggerhead appealed and the TTAB examined the DuPont factors for which there was evidence in the record.

Similarity of goods, services, and channels of trade. Loggerhead argued that the goods and services were distinct because it was a distillery while the registered mark was for bar and restaurant services. However, the Board held that the services were related because the Examining Attorney had provided evidence showing that the same entity frequently provides distillery services, distilled spirits, and restaurant services under the same mark. Even though Loggerhead was not legally allowed to sell its spirits by the glass under local law regulating distilleries, the Board was required to make its decision based on the descriptions in the registration and application, not on the real world conditions which would be subject to change. These factors weighed in favor of confusion.

Similarity of marks. The marks shared the dominant word "loggerhead" as the most prominent element. Loggerhead’s distinguishing word "distillery" was disclaimed and appeared much less prominently in its design mark. The difference between LOGGERHEAD DISTILLERY and LOGGERHEAD LANDING was minimal because the frequent combination of distillery services and restaurant services made the commercial impressions very similar. This factor weighed in favor of confusion.

Similar marks on similar goods and services. Loggerhead argued that the word "loggerhead" is commonly used and there were seven other registrations containing the word present on the principal register. However, the Board noted that evidence of registrations is not evidence of use in the marketplace. It was actual use among consumers which would lead the Board to believe that the public had been educated to look for small differences between similar marks. Since there was no evidence of use of similar marks, this factor was neutral.

Actual confusion. There was no evidence of actual confusion, but the Board did not consider that fact of much importance. In an ex parte proceeding the Board has no way of knowing whether the registrant knows of any actual confusion, or whether there has been any opportunity for actual confusion to occur. This factor was neutral.

Because the DuPont factors for which there was evidence or argument of record all either supported a finding of confusion or were neutral, the Board affirmed the Examining Attorney’s refusal to register.

This case is Serial Nos. 88441155 and 88452674.

Attorneys: Angela Duong for the USPTO. Ashley V. Brewer (BrewerLong PLLC) for Loggerhead Distillery, LLC.

Companies: Loggerhead Distillery, LLC

Cases: Trademark USPTO GCNNews