Mixing Alcohol and IP Rights: Recipes For Consumer Confusion, Mere Descriptiveness, and Trademark Infringement

In 2014 and 2015, many beer and wine brands, found on shelves at your local liquor store, have found themselves in the middle of legal battles involving trademark law. The following cases are examples of how geographic terms, and marks that harness a high likelihood of confusion, create legal issues for businesses in the wine and beer markets.

Arcata

This trademark case, dealt with geographic misdescriptiveness and the risk of deceptively influencing consumers. The USPTO rejected registration of ARCATA wines because “ARCATA” was geographically misdescriptive. Arcata is a town in Northern California. Apparently, however, the town was not linked with the applicant’s wine. The Trademark Trial and Appeals Board reversed the rejection because Arcata is not particularly known for producing wine. Thus, it reasoned, consumer-purchasing decisions would not be influenced by the name and there was no risk that misdescriptiveness would confuse consumers. (See In re D’Andrea Family Limited Partnership, Serial No. 85834204).

N2Wines

Here, the issue was descriptiveness. A USPTO examiner refused registration of the N2WINES mark for “on tap” keg wine because it was merely descriptive. The examiner held that since N2 is the chemical symbol for nitrogen, the gas used to dispense the wine from the keg, it was merely descriptive. The TTAB reversed the refusal to register, however, because the applicant was not simply using N2Wines to describe the chemical process, but as a play on words: N2Wines = “into wines”.

Crown Royal Whiskey

Crown Royal, a well-known maker of whiskey, filed a lawsuit against Texas Crown Club. This case involves infringement of Crown Royal’s brand name and trade dress. A federal judge in the Southern District of Texas refused to dismiss the trademark action brought by the makers of Crown Royal alleging that the makers of Texas Crown Club infringed Crown Royal’s brand name and velvet drawstring bag trade dress. As of this writing, the case is in the midst of a jury trial. Plaintiff argued that the similarity between the brand name and trade dress created “actual confusion,” a very hard but very helpful piece of evidence for a plaintiff to prove. (See Diageo North America Inc. v. Mexcor Inc.,Case No. 4:13-cv-00856).