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Is It Five O’Clock (or 1700 Hours) Somewhere?

Posted in Mixed Bag of Nuts, Trademarks, TTAB

You’re probably familiar with the song “It’s Five O’Clock Somewhere” by Jimmy Buffet and Alan Jackson. It was the number one country single of the year back in 2003. A few years later, Jimmy Buffet submitted several trademark applications based on the song, which are now registered, including for example, IT’S FIVE O’CLOCK SOMEWHERE and IT’S 5 O’CLOCK SOMEWHERE, for restaurant and bar services (Reg. Nos. 4,125,6634,962,176).  The entity Margaritaville Enterprises, LLC (“Margaritaville”) is now listed as the owner of those marks.

Last year, another business, The Veteran Beverage Company, applied to register the mark IT’S 1700 HOURS SOMEWHERE for beer (Serial No. 87160262). In 24-hour military time, 1700 hours is equivalent to 5:00 PM.  However, the Examining Attorney determined that there were no conflicting marks, and approved Veteran Beverage’s mark for publication.

Margaritaville recently stepped in with a Notice of Opposition, filed a few weeks ago, opposing registration of the IT’S 1700 HOURS SOMEWHERE mark.  The Notice of Opposition alleges a likelihood of confusion based on its various 5 O’CLOCK SOMEWHERE marks. Specifically, Margaritaville alleges that the parties’ marks are similar in sight and sound, “identical in meaning,” and “virtually identical in commercial impression,” with the “only difference being that Applicant’s Applied-for Mark shows 5:00 PM in military time.”

Although there are obvious differences in sight and sound of the marks (the words “1700 Hours” instead of “Five O’Clock”), the “similarity in meaning” factor can be just as significant in supporting a likelihood of confusion, especially where there is an identical meaning. See, e.g.Gastown, Inc., of Del. v. Gas City, Ltd., 187 USPQ 760 (TTAB 1975) (holding GAS CITY for gasoline and GASTOWN for gasoline likely to cause confusion); Watercare Corp. v. Midwesco-Enterprise, Inc., 171 USPQ 696 (TTAB 1971) (holding AQUA-CARE (stylized) and WATERCARE (stylized), for water-conditioning products, likely to cause confusion). Thus, this may be a difficult battle for Veteran Beverage. There are potential counterarguments, such as a lack of sufficient relatedness between the parties’ goods and services, although Margaritaville argues that Veteran Beverage’s beer goods are closely related to its restaurant and bar services. What do you think?