The USPTO refused to register the mark LIQUOR SLINGER DISTILLING for "liquor" [LIQUOR and DISTILLING disclaimed], finding the mark likely to cause confusion with the registered mark SLINGER for "drinking glasses; shot glasses." Applicant James argued that the goods are sold in different channels of trade, and that the word SLINGER has differing meanings in the two marks. How do you think this came out? In re Ernest Everett James, Serial No. 87905550 (July 30, 2019) [not precedential] (Opinion by Judge Robert H. Coggins).
Examining Attorney Caroline L. Moran maintained that it is common for a distillery to also sell drinkware, basing that contention on Internet evidence from third party websites. The Board found that this evidence supports a finding that the goods are related and complementary, and that relevant consumers may expect liquor and glassware to be offered together from a single source.
The evidence also showed that liquor and shot glasses travel in some of the same channels of trade to some of the same classes of consumers. Applicant James contended that sales of liquor is tightly controlled through a highly regulate three-tiered system, whereas glassware is sold in store selling home goods. The Board observed, however, that there are no limitations in the application or cited registration as to trade channels or consumers.
Specifically, there is no restriction in the cited registration limiting the channels of trade of drinking and shot glasses to "stores selling home goods" or limiting the classes of purchasers to people under 21 years of age or to those who do not drink or serve liquor.
The evidence demonstrated that liquor and glassware are commonly sold by the same entity (e.g., a distillery) to some of the same consumers, even if the "environment" might be tightly controlled.
The Marks: Consumers are less likely to focus on the generic, disclaimed terms in applicant's mark, and so SLINGER is the dominant portion of applicant's mark. James argued that the cited mark SLINGER "brings to mind an ancient soldier," whereas SLINGER in applicant's mark has the "commercial impression of a proprietor [sic] of liquor." However, he provided no evidence to support that argument.
The Board found that the term SLINGER is likely to have the same connotation and commercial impression in each mark, especially since the goods are complementary. "The consuming public, which is prone to shortening marks, could easily regard Registrant's mark SLINGER as a shortened version of Applicant's mark LIQUOR SLINGER DISTILLING."
Considered in their entireties, the marks are similar in appearance, sound, connotation, and commercial impression.
Conclusion: Finding confusion likely, the Board affirmed the refusal.
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