On September 21, 2015 Scott Slavick's article, "Slerring yer werds? Too much Brewnette fer yer" was published in InsideCounsel.com.
Who's Confused? Asks Slavick, After Nutty Ruling at TTAB
Trademark holders and their counsel may need to reconsider what the TTAB means when it says two marks are similar, after reading a divided panel ruling in In re Twin Restaurant IP LLC, says Brinks' Slavick in a recent article for InsideCounsel.com.
A USPTO examiner refused to register restaurant chain Twin Peaks' mark Knotty Brunette for beer, ale and lager, judging it confusingly similar to B.J's Restaurants' registered mark Nutty Brewnette for beer. Twin Peaks appealed to the TTAB. A majority on the panel held that the marks each had their own unique humorous play on words that projected separate meanings and distinct commercial impressions to would-be consumers, and reversed the refusal.
TTAB Judge David Bucher found the decision nutty, though, arguing that the marks were confusingly similar in terms of sound and connotation, and explaining that when the parties' goods are identical, less similarity is necessary to support a finding of confusion. Since the panel issued its opinion during prosecution and not in an opposition proceeding, it will be interesting to see if Twin Peaks' mark is ultimately opposed by B.J.'s, notes Slavick.
Originally published by InsideCounsel.com.
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