Recently, the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB) upheld the Office’s refusal to register the trademark UPSLOPE for beer based on a prior registration for UPSLOPE for wine. The TTAB, in considering the likelihood of confusion of similar trademarks, looks at the trademarks as shown in the mark, other similar applications or registrations to the marks at issue, and the similarities of the goods described in the application or registration.

The trademarks as shown in the mark were identical in this case (the plain text word ‘UPSLOPE’), therefore, the critical issue was whether beer and wine are sufficiently related such that consumers would believe that both a beer and wine labeled with the UPSLOPE name were somehow associated with one another, or produced by the same company. Upslope Brewing, the applicant whose trademark was denied, argued that beer and wine are not related goods per se. The TTAB agreed with this argument, however, after reviewing the record in this case (which included evidence of retailers offering both alcoholic beverages, and several registered trademarks that are in use for both beer and wine), the TTAB was persuaded that the two goods are closely related. Thus, although the TTAB used a case-specific analysis, they also set the bar pretty low for evidence showing relatedness. It appears that in most cases, relatedness will be able to be proven so as to support a finding of likelihood of confusion between similar marks for beer and wine products.


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