Copper Moon Coffee, LLC (“Copper”) filed an intent to use application for the trademark BEAN BLOSSOM for coffee, not including alcoholic beverages in class 30. The Examining Attorney denied the mark for a likelihood of confusion with a registered mark for BEANBLOSSOM for hard cider in class 33. Copper appealed the decision to the Trademark Trial and Appeal Board (“TTAB”).
Similarity of BEANBLOSSOM and BEAN BLOSSOM
Copper argued in its appeal that the space between the words “Bean” and “Blossom” creates a different cadence when compared to the singular word “Beanblossom”. Unfortunately for Copper, the TTAB did not find this argument persuasive. The TTAB noted that both marks appear as standard character marks. Further, Copper did not present arguments as to why they would be pronounced differently.
Copper also argued dissimilarity of the marks due to the BEANBLOSSOM mark primarily referring to geographic landmarks and areas proximate to the owner’s facilities. The TTAB similarly did not find this argument persuasive. They noted that BEANBLOSSOM registered on the Principal Register and thus is presumed inherently distinctive. Accordingly, the TTAB found that the marks create the same visual and aural impression; have the same connotation; and create an identical commercial impression.
Similarity of goods, trade channels and consumers
With regard to the similarity of goods, trade channels and consumers, the TTAB also found a likelihood of confusion between BEANBLOSSOM and BEAN BLOSSOM. Regarding similarity of the goods, they stated it is necessary there is a “viable relationship between the goods”. They noted the mere fact that both goods are beverages is insufficient to establish the necessary relationship.
Copper offered evidence describing the different nature of the beverages. The TTAB noted hard cider is an alcoholic beverage. It contains ethanol, a drug, and is a depressant. Coffee contains caffeine and is a stimulant. Adults consume both beverages. In its reasoning, the TTAB found both beverages contain drugs. This fact was sufficient to create a relationship between them which supports a likelihood of confusion. To further support their reasoning, they noted the record contains four registered third-party marks offering both coffee and hard cider. The TTAB also noted articles from third party websites showing coffee may be a component of hard cider.
Copper offered pairs of registrations showing the respective goods are distinct enough that confusion would be unlikely. Unfortunately, the TTAB did not find this evidence probative because the registrations involved coffee and beer, not coffee and hard cider.
Neither the application for BEAN BLOSSOM nor the cited registration for BEANBLOSSOM included any restrictions on channels of trade; classes of purchasers; or conditions of sale. Accordingly, a segment of consumers for both products focus their purchasing decisions on locally sourced beverages or the environmental impact of beverages. Accordingly, the TTAB concluded that the goods share overlapping channels of trade and consumers. Thus, a likelihood of confusion exists.
Takeaway
This case is a good example that a likelihood of confusion can exist between goods that are contained in different classes if there is a “viable relationship between the goods”. It is interesting that the TTAB did not take into account the disclaimer of “not including alcoholic beverages”. The reasoning that both beverages contain drugs and therefore a relationship exists seems to stretch the boundaries. However, the similarity of the marks as well as third party registered marks listing both beverages lean in favor of a likelihood of confusion. Perhaps if Copper had presented evidence of pairs of registrations for coffee and cider, the scales would have tipped more into their favor.
