-Martha Engel, Attorney
You might be familiar with the popular mid-90s commercials suggested by the title of this post. However, the intention of this post is about the use of trademarks on beer to refuse trademark protection for wineries and vice versa, which is an increasing problem for the growing craft alcohol industry.
Recently an Austrailian company, Innvopak Systems Pty Ltd, tried to register WINEBUD in the U.S. Its description for the mark stated “alcoholic beverages except beers; wines and still wines and sparkling wines; beverages containing wine, namely, sparkling fruit wine and still fruit wine; ready to drink alcoholic beverages except beers.” While the Trademark Office has been increasingly difficult when it comes to wines and other beer or alcoholic beverages when it comes to approving applications for publication, the WINEBUD application was approved by the Trademark Office, but later opposed by Anheuser-Busch based on its BUD marks for beer.
The U.S. Trademark Office decided in favor of Anheuser-Busch here. The Trademark Trial and Appeal Board determined that there was a likelihood of confusion because, in short, BUD is a famous mark, the marks are similar, wine and beer are sold in the same places, and consumers are unlikely to exercise care in their purchases based on the price point. Innvopak had argued that the marks were dissimilar, stating that the WINEBUD mark was a play on vinebud or the bud of a vine and was therefore different in commercial impression than BUD. It also tried to argue that the applied for goods were sufficiently different from beer.
I’ve often suggested that one of the ways that breweries or wineries could overcome refusals at the Trademark Office based on the relatedness of the goods is to provide survey evidence from consumers showing that the consuming public recognizes that beer comes from breweries and wine comes from wineries and would therefore not be confused by a beer bearing a mark similar to a wine’s trademark or vice versa. Here, Budweiser commissioned such a study and found some interesting figures:
- 24% of survey respondents believed that wine sold under the WINEBUD mark would be put out by, affiliated or connected with, or approved or sponsored by Anheuser-Busch. (Put another way 76% of respondents did not)
- 37% were reminded of Budweiser by Applicant’s WINEBUD mark
- 45% of respondents associated the name WINEBUD with Anheuser-Busch
Are you surprised by these statistics? How do you think the court should have ruled on BUD for beer v. WINEBUD for wine?