Philip Carter Strother (“Strother”) filed an intent to use application for “GNARLED ORCHARD” for “hard cider” in class 33. Upon publication of the mark, Delicato Vineyards (“Delicato”) filed an opposition proceeding to oppose the registration of the trademark. The opposition based on a likelihood of confusion with its GNARLY HEAD® trademark for “wines” and “alcoholic beverages, except beer” in class 33.
Similarity of goods – hard cider versus wine
Strother argued there are fundamental differences between cider and wine that a consumer would recognize when purchasing the item. However, The TTAB noted that the issue is not a fundamental difference between the products sold by the parties. Rather, the issue is whether purchasers will be misled into thinking that the goods emanate from the same source. Strother sold both hard cider and wine in his businesses. Further, the TTAB noted previous rulings that beer and wine are related goods for the purposes of a likelihood of confusion analysis. Accordingly, the TTAB ruled the goods offered by the parties are similar as are the classes of consumers and the channels of trade. As such, these factors weigh in favor of a likelihood of confusion.
Buyer sophistication with respect to cider and wine
The TTAB then looked to the relevant consumers’ care and sophistication. Strother argued buyer sophistication has grown with regard to wine. Such sophistication lends to not having a substantial likelihood of confusion with cider and wine. The TTAB stressed that the question is not whether consumers would confuse the goods themselves, but rather whether the consumers would believe that the goods emanated from the same source. The TTAB noted that the standard is that of the least sophisticated purchaser. They also noted that many purchases occur in restaurants and bars where consumers order the goods by the glass. Accordingly, the consumer would have little opportunity to scrutinize the mark. In light of the foregoing, the TTAB found there was no reason to believe that a consumer’s care or sophistication would allow them to avert confusion with regard to the marks.
Similarity of Marks Themselves
In comparing the marks, Strother argued that “gnarled” conveys a different commercial impression than “gnarly”. The TTAB disagreed and found the marks are similar in sight, sound, connotation, and commercial impression. Both begin with “gnarl”; add a two-letter suffix; are adjectives; and connotate dangerous and twisted with age. Further, both “gnarled” and “gnarly” appear prominently as the first word in each mark. Accordingly, the TTAB found a likelihood of confusion. Consumers familiar with the products offered under the GNARLY HEAD® mark would be likely to believe that hard cider offered under the GNARLED ORCHARD mark originated from the same source. Thus, the GNARLED ORCHARD mark was denied registration.
It is important to remember that the standard for trademark infringement is not whether a consumer would be confused between the goods themselves. Rather, the standard is whether the marks are so similar that there is a likelihood of confusion as to the source of the goods/services by the average consumer. In the instant case, Strother kept arguing the differences between the goods themselves. Even though his own businesses sold both wine and cider, he did not appreciate a consumer could be confused as to the source of the goods. A good trademark attorney could have saved him considerable time and money by simply performing a trademark search prior to filing.