IP Law Daily, TRADEMARK—TTAB: TASTE THE POETRY vodka likely confusable with POETRY wine, (Sep 15, 2025)

By Jonathan Anderson

The Board said POETRY is at minimum inherently distinctive and arbitrary because it does not describe or suggest any quality or characteristic of wine.

The Trademark Trial and Appeal Board has sustained an objection to register the mark TASTE THE POETRY for vodka, finding that it is likely confusable with the mark POETRY for wine. The Board found that the goods are highly similar, the trade channels are identical, and that many consumers overlap and likely will not exercise care in purchasing the low-cost goods. Further, the Board found that the marks are similar and that Opposer’s mark is conceptually strong but lacked evidence of marketplace strength (Twin Peaks Winery, Inc. v. Nocturnal Vodka, LLC, No. 91288135 (T.T.A.B. Sept. 11, 2025)).

Background. Applicant Nocturnal Vodka, LLC sought to register the standard character mark TASTE THE POETRY on the Principal Register for “vodka” in International Class 33. Opposer, Twin Peaks Winery, Inc., opposed registration of Applicant’s mark under Section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d), asserting priority and a likelihood of confusion with Opposer’s previously used and registered standard character mark POETRY for “wine” in International Class 33.

Priority. Applicant did not file a counterclaim to cancel the registration. Thus, the Board found that priority was not at issue with respect to the mark and goods covered by Opposer’s registration.

Likelihood of confusion. The Board analyzed all probative evidence of record bearing on a likelihood of confusion and considered each DuPont factor for which there was evidence and argument. In weighing these factors, the Board found that confusion is likely.

Similarity of the goods. First, the Board found that the goods are highly similar and that the similarity of the goods weighs strongly in favor of a likelihood of confusion. The Board cited evidence of third-party use-based registrations covering both wine and vodka and websites showing third-party companies using the same mark for wine and vodka. Further, the Board noted evidence of complementary use of the goods in cocktails. Opposer argued that the parties’ goods were also related by showing that some vodka is made from wine grapes, but the Board found this evidence minimally probative of relatedness. The Board said the use of a similar ingredient in making a good does not necessarily equate to consumers perceiving a relatedness between the finished products in the marketplace.

Trade channels, classes of consumers, purchaser care. Second, the Board found that the identity in the channels of trade, overlap in classes of consumers, and the low degree of purchase care strongly support that confusion is likely. Because there were no limitations as to trade channels or classes of purchasers, the Board presumed that the goods travel in all normal channels and to all prospective purchasers. Opposer supplied evidence of online retailers that sell both wine and vodka and further showed that the normal trade channels for wine and vodka include liquor stores and wineries and distilleries. The Board observed that wine and vodka are general consumer goods sold to the general public. The Board also found that because wine and vodka can be sold at low price points, many customers do not exercise great care in purchasing such products.

Strength of Opposer’s mark. Third, the Board found that Opposer’s POETRY mark is conceptually strong, which weighed in Opposer’s favor. The Board held that Opposer’s mark is at minimum inherently distinctive and agreed with Opposer that its mark is arbitrary because “POETRY” does not describe or suggest any quality or characteristic of wine. However, the Board said the absence of evidence of marketplace strength reduces the impact of this determination.

Similarity of the marks. Fourth, the Board found that although the marks when viewed in their entireties are not identical, they are similar in sound, appearance, meaning, and commercial impression. These similarities outweigh the differences and thus the similarity of the marks weighs in favor of the likelihood of confusion. The Board noted that courts have found marks to be similar when one mark incorporates the entirety of another mark. Additionally, the Board found that “POETRY” is the dominant portion of Applicant’s mark as it is arbitrary for Applicant’s vodka, whereas “taste the” is less distinctive and does not distinguish the marks given that both parties’ products are alcoholic beverages that are “tasted” when consumed. Further, the Board noted that both marks are presented in typed or standard character form, so each could be used in any typeface, color, or size, including the same stylization or a style that emphasizes the similarities between the marks. The marks also sound similar and given that the dominant term in Applicant’s mark is identical to Opposer’s mark POETRY, the meaning and overall impression conveyed by the two marks are similar when considered in relation to the parties’ respective alcoholic beverages.

Extent of potential confusion. Fifth, the Board found neutral the factor of the extent of potential confusion. The Board said Opposer’s arguments for this factor essentially repeated arguments for other factors and had been considered.

The Case is Opposition No. 91288135.

Judge: Bradley, J.

Attorneys: J. Scott Gerien (Dickenson, Peatman & Fogarty) for Twin Peaks Winery, Inc. Sam Pierce (Pierce Patent Law) for Nocturnal Vodka, LLC.

Companies: Twin Peaks Winery, Inc.; Nocturnal Vodka, LLC

Cases: Trademark USPTO