Wednesday, March 9, 2011

Refusal of Trademark UPSLOPE for Beer Upheld by USPTO Based on Prior Trademark for UPSLOPE for Wine

Consistent with earlier precedent, 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.  In considering the likelihood of confusion between trademarks, the TTAB limits the analysis to the trademarks as shown in the trademark applications or registrations at issue, as well as the goods as described in such applications or registrations. 

In this case, the marks were identical as identified in the respective trademark application and registration, i.e., the 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 mark UPSLOPE were somehow associated with one another or emanated from the same source.

Applicant, Upslope Brewing, argued that alcohol beverages (e.g., beer and wine) are not related goods per se.  The TTAB agreed stating that the relatedeness of alcohol beverages is not an absolute rule and evidence must be considered before making such a determination. However, after reviewing the record, which included Internet evidence of retailers offering beer and wine on their websites, and copies of several registered trademarks in use for both beer and wine, the TTAB was persuaded that the two goods are closely related. 

While this opinion clearly establishes that relatedness of alcohol beverages must be proven on a case-by-case basis, it also illustrates that the threshold for such evidence in the TTAB is fairly low such that relatedness can usually be proven so as to support a finding of likelihood of confusion between similar marks for beer and wine.

The full opinion may be found at the following link: In re Upslope Brewing LLC, Serial No. 77650402

For further information or assistance with trademark matters contact Scott Gerien at

1 comment:

  1. I always found the issues of relatedness interesting with respect to alcoholic beverages. Aside from a possible inverse relationship between consumption and consumer sophistication or one's ability to distinguish source at point of sale, how can one draw a real connection in terms of origin of such goods when you have beer on one hand and wine on the other? After all, aren't the necessary equipment and processes different for each type of alc. Beverage?