In Anheuser-Busch LLC v Innvopak Systems Pty Ltd (Case No 91194148, August 19 2015) (precedential), the Trademark Trial and Appeal Board (TTAB) has found that the applicant’s mark WINEBUD for wine is confusingly similar to Anheuser-Busch’s BUD mark. The TTAB found that the mark BUD is famous for beer and that consumers are likely to think that Winebud wine is produced by the makers of Bud beer.
The applicant filed to register WINEBUD for alcoholic beverages excluding beer. Anheuser-Busch opposed, asserting that WINEBUD is confusingly similar to its marks BUD, BUDWEISER and several other ‘bud’- containing marks, all registered for, and in use in connection with, beer.
The TTAB found that the record left no doubt that Anheuser-Busch’s BUD mark is famous for beer, having been sold since 1876, extensively advertised and promoted, and having “extremely large” sales. In addition, Bud Light and Bud are the best-selling and second best-selling beers in the United States, respectively.
The TTAB also agreed with Anheuser-Busch that the marks are similar, pointing first to the fact that WINEBUD incorporates the entirety of the BUD trademark. The applicant argued, however, that the marks are highly dissimilar in appearance, sound, connotation and commercial impression because ‘vine bud’ is a recognized term in the field of viticulture. Budweiser, on the other hand, is a town in the Czech Republic famed for brewing beer, and ‘Bud’ is merely an abbreviation of ‘Budweiser’. The board found that the record did not support the applicant’s contentions.
The applicant did not submit any evidence to suggest that any substantial number of relevant consumers have heard of the small town of České Bedějovice or Budweis, its former name, or that consumers associate Bud beer with that town. Nor did the applicant’s evidence, consisting of one winery trade article, convince the TTAB that ‘vine bud’ is a recognized term in the field of viticulture. Rather, the TTAB found the ‘wine’ component of the applicant’s mark is merely descriptive of the goods and ‘bud’ is the distinctive component, which is identical to Anheuser-Busch’s famous mark.
As to the similarity of beer and wine, the board has often held that wine and beer are related goods, having overlapping trade channels and often both sold at low price points. Further, the fact that Anheuser-Busch has never expanded use of its BUD mark to use on wine was of no relevance to the TTAB. Rather, the relevant question was whether purchasers seeing a similar BUD mark on wine would think that Anheuser- Busch has expanded its product line to include wine. The TTAB held that the fame of the BUD mark makes it likely that consumers would be confused.
Diane M Reed, Knobbe Martens Olson & Bear LLP, Orange County
This article first appeared on WTR Daily, part of World Trademark Review, in October 2015. For further information, please go to www.worldtrademarkreview.com.