Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
*1 IN RE SAILERBRAU FRANZ SAILER
Serial No. 74/053,404
March 3, 1992
Charles G. Mueller of Brooks, Haidt, Haffner & Delahunty for applicant.
Trademark Examining Attorney
Law Office 11
(Thomas Howell, Managing Attorney)
Before Rooney, Seeherman and Cissel
Opinion by Rooney
An application was filed to register the mark CHRISTOPHER COLUMBUS for beer. Applicant claimed priority based on an application filed in the Federal Republic of Germany (which has since issued as a registration [FN1] and applicant has expressed a bona fide intent to use the mark in commerce. Registration has been finally refused in view of a registration of the mark CRISTOBAL COLON and design, shown below, for sweet wine. [FN2] Applicant has appealed.
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
Applicant has argued that the goods are specifically different, a difference allegedly illustrated by the fact that they are classified in different classes in the international schedule of classes of goods and services and in the prior U.S. schedule of classes of goods and services; that the differences between wine and beer are numerous and significant, wines being produced by wine growers from grapes which are harvested, pressed, fermented and aged before bottling, whereas beer is made from grain, produced in breweries by cooking and is consumed within six months of its production. The channels of trade are also different, according to applicant, because wine and distilled spirits are sold in liquor stores, while supermarkets and grocery stores sell beer, but rarely wine. Applicant further argues that purchasers of beer and wine exhibit brand loyalty and therefore are discriminating purchasers.
Inasmuch as applicant made no argument with respect to the similarities of the marks, it is taken as conceded that the marks are so similar that their use on the same or similar goods is likely to lead to confusion.
With respect to the arguments relative to the differences in the goods, we note that the fact that goods are found in different classes has no bearing on the question of likelihood of confusion. The separation of goods into the various classes of the classification schedule is merely a convenience for the Office and is not intended as a commentary on their relationship to one another in the marketplace.
As to the relationship between the goods involved herein, we note that this Office has held confusion to be likely where the same marks were being used on beer and wine. See Fruit Industries, Ltd. v. Ph. Schneider Brewing Co., 146 F.2d 310, 46 USPQ 487 (Commr. of Patents 1940) (La Fiesta for beer likely to cause confusion with La Fiesta for wine) and Krantz Brewing Corporation v. Henry Kelly Importing & Distributing Co. Inc., 215 F.2d 284, 96 USPQ 219 (Patent Office Examiner in Chief 1953) (Old Dutch for wine likely to cause confusion with Old Dutch for beer).
*2 We agree that there is a likelihood of confusion between the marks here involved as applied to beer and to wine. Contrary to applicant's argument, both beer and wine may be found in the same outlets, whether they be liquor stores or supermarkets. We do not agree with applicant that purchasers are necessarily discriminating. While some may have preferred brands, there are just as likely to be purchasers who delight in trying new taste treats. Furthermore, these are not expensive items requiring one to exercise careful thought and/or expertise in their purchase. More often than not they are shelf items which are purchased on a somewhat casual basis. That they may both be sold under the same brand name is borne out by the registration copies, put into the record by the Examining Attorney, which show a number of marks which have been registered for both beer and wine.
For the foregoing reasons, we affirm the refusal to register applicant's mark in view of the existence of the cited registration.
Members, Trademark Trial and Appeal Board
FN1. German Regn. No. 1,155,820 issued March 3, 1990.
FN2. Registration No. 1,606,628 issued July 17, 1990.
March 31, 1992
The Board's decision mailed March 3, 1992 is amended as follows:
On page 4, line 7 of the first paragraph is amended by substituting the following: "That beer and wine may emanate from the same source is illustrated by the registration copies, put into the record by the Examining Attorney, which show that a number of companies have registered their marks for both beer and wine" for "That they may both be sold under the same brand name is borne out by the registration copies, put into the record by the Examining Attorney, which show a number of marks which have been registered for both beer and wine."