Speymalt Whisky Distributors Ltd., a prominent name in the spirits industry, sought to register "The Cairn" as a trademark for its range of high-quality Scotch whisky and whisky-based liqueurs. This application aimed to fortify their brand's presence and safeguard their unique products in the competitive market. However, the Trademark Examining Attorney opposed the application, citing a potential likelihood of confusion with two existing registered marks: "Cairn Brewing" and "Kenmore Washington Brewing." The opposition led Speymalt to escalate the matter to the Trademark Trial and Appeal Board (TTAB).

TTAB'S EXAMINATION

The TTAB is renowned for its thorough handling of trademark disputes, utilizing the DuPont factors to assess the likelihood of confusion. These factors include the similarity of the marks, the relatedness of the goods, and the channels of trade. In this case, the TTAB closely examined the similarities between "The Cairn" and "Cairn Brewing." The common use of the term "Cairn" was a key factor, as it suggested a potential overlap in consumer perception.

The TTAB also evaluated evidence indicating that beer and whisky can be marketed under similar trademarks. This evidence included ten third-party registrations for marks associated with both beer and liquor, which supported the claim of potential confusion. The evidence illustrated how both beer and whisky might be sold under similar names, increasing the likelihood that consumers could mistakenly believe the products came from the same source.

ANALYSIS OF THE MARKS

In assessing the marks' strength, the TTAB found "Cairn Brewing" to be an arbitrary mark with broad protection due to its lack of direct reference to a specific product feature. The term "Cairn" was considered the most distinctive and memorable part of the mark, while the addition of "Brewing" did not sufficiently distinguish it from "The Cairn."

The TTAB's analysis of the marks included evaluating their appearance, sound, connotation, and overall commercial impression. The board noted the striking visual and phonetic similarities, finding that "The Cairn" and "Cairn Brewing" shared significant overlap that could lead to consumer confusion. The addition of "THE" in Speymalt's mark was deemed insufficient to create a notable difference in commercial impression.

OUTCOME

The TTAB ultimately upheld the refusal to register "The Cairn," concluding that the similarities between Speymalt’s mark and the existing marks "Cairn Brewing" and "Kenmore Washington Brewing" created a likelihood of confusion. This decision was based on a comprehensive analysis of the DuPont factors, market evidence, and the overall similarity of the marks. The ruling underscores the importance of thorough trademark examination and the need for distinctiveness to avoid confusion in the marketplace.

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