IP Law Daily, TRADEMARK—TTAB: MAJESTIC MANGO mark was likely to be confused with MAJESTIC SHAKES, (May 12, 2023)

By Kevin M. Finson, J.D.

The ice cream products covered by the marks were found to be legally identical despite one being infused with alcohol.

A seller of alcohol infused iced confections failed to show that its applied-for mark would not be confused with a similar registered mark, the Trademark Trial and Appeal Board has held. The goods of one encompassed those of the other and the marks were very similar (In re: Buzz Bar LLC, May 1, 2023, Taylor, D.).

Buzz Bar, LLC (Buzz Bar) sought registration on the Principal Register for the standard character mark MAJESTIC MANGO (with MANGO disclaimed) for use with “ice cream infused with alcohol; Sorbet infused with alcohol” in International Class 30. The Examining Attorney refused registration on the ground of likelihood of confusion with the standard character mark MAJESTIC SHAKES (with SHAKES disclaimed) registered for use with “frozen confections; ice cream products, namely, ice cream and ice cream drinks” in International Class 30. Buzz Bar appealed. The board considered the DuPont factors for which there was evidence of record.

Similarity of goods. The board noted that the application’s listed “ice cream infused with alcohol; Sorbet infused with alcohol” were completely encompassed by the registration’s broadly worded “frozen confections; ice cream products, namely, ice cream and ice cream drinks.” Buzz Bar argued that the goods were different inasmuch as its goods contained alcohol, but the board pointed out that the registration did not limit itself to goods not containing alcohol. Because the goods were legally identical, the board presumed the channels of trade and classes purchasers were likewise identical. All of these factors weighed heavily in favor of a likelihood of confusion.

Similarity of the marks. The board held that the addition of the disclaimed words MANGO and SHAKES did little to alter the shared impression generated by the dominant element of both marks, the word MAJESTIC. In the context of legally identical goods, the amount of similarity necessary to cause confusion was lessened, and here the similarity weighed in favor of a likelihood of confusion.

Conditions of sale. Buzz Bar argued that because its goods were subject to legal restrictions and could be sold only to consumers over 21 years of age consumers would exercise a heightened degree of care in purchase. The board held, however, that goods such as those sold by Buzz Bar were typically sold at modest price points and were likely to be the subject of impulse purchases. This factor also weighed in favor of a likelihood of confusion.

Balancing the factors, the board affirmed the refusal to register.

The Case is Serial No. 90358149.

Attorneys: Drew Ciurpita for the USPTO. Joseph R. Cruse, Jr. (Law Office of Joseph R. Cruse, Jr.) for Buzz Bar LLC.

Companies: Buzz Bar LLC

Cases: Trademark USPTO