Ohio Beer Counsel
Information and Commentary on the Issues Facing Ohio's Craft Beer Community, Breweries and Distilleries - Brewed by the Craft Beer Lawyers of Bruns, Connell, Vollmar & Armstrong's Brewery & Distillery Practice Group



You're Likely to Be Confused About Likelihood of Confusion

Less than two weeks ago, the "King of Beers" filed a Notice of Opposition with the Trademark Trial and Appeal Board of the United States Patent and Trademark Office (USPTO) against SHE Beverage Company (a "celebrity driven" beverage company??) for its December 20, 2014 application to trademark "The Queen of Beer."  In addition to other arguments, AB argues The Queen of Beer so resembles The King of Beers as to be likely to cause confusion.  What exactly does "likelihood of confusion mean."  You're likely to be confused.

First, the question focuses on whether there is a likelihood of confusion as to the source or sponsorship of the goods or services because of the marks used thereon, not whether the marks, goods or services themselves are likely to be confused.

Second, while courts have discussed several factors relevant to the determination, not all factors are relevant and the relevancy of a specific factor may differ from case to case.  Clear enough for ya?

Despite this, courts agree the following two factors are relevant in any determination as to whether there is a likelihood of confusion.

  1. The similarity of the marks in their entireties as to appearance, sound, connotation and commercial impression; and
  2. The relatedness of the goods or services as described in the application and registration.

Depending on the circumstances, specific facts and evidence, additional factors may also be considered.

  1. The similarity of established, likely-to continue trade channels;
  2. The conditions under which and buyers to whom sales are made (impulse vs. careful, sophisticated purchasing);
  3. The number and nature of similar marks in use on similar goods; and
  4. The existence of a valid consent agreement between the parties.

The failure to think proactively (i.e., thoroughly plan, prepare and research your mark) before making application with the USPTO can result in opposition from the holder of a registered mark or the USPTO itself.  When forced to react to trademark opposition, the expense and headache quickly accumulate.

Contact OBC with questions.