When you say BUD®

Vintage-Budweiser-Ad
Of course he’s happy. The restaurant popped open that can special for him!

Disputes involving the great BUDWEISER trademark are even older than LIKELIHOOD OF CONFUSION® — the blog, not the secondary meaning thing.  You know that because even in 2006 I wrote — already sounding like a tired old man — how ubiquitous Anheuser Busch’s enforcement adventures were.

Here’s the latest one to come to notice, via John Welch, and it does have to make you pine for a cold frosty to read how this went:

The TTAB sustained an opposition to registration of the mark WINEBUD for “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,” finding the mark likely to cause confusion with the famous mark BUD registered for beer. The Board deemed the marks to be highly similar, the involved goods to be related, and the channels of trade and classes of consumers overlapping. The goods are purchased by ordinary consumers who are unlikely to exercise care in their purchases. Survey evidence corroborated the Board’s conclusion. Anheuser-Busch, LLC v. Innvopak Systems Pty Ltd., Opposition No. 91194148 (August 17, 2015) [precedential]. . . .

The marks: Applicant argued that WINEBUD is a “fanciful compound noun formed from the nouns WINE and BUD, an analogy to horticultural words such as ‘rosebud.'” It contended that wine drinkers would perceive the latter half of its mark as connoting the bud of a vine, not as a reference to BUDWEISER the beer or the BUD family of marks. According to Applicant, BUD refers to BUDWEISER and BUDWEISER refers to someone or something from Budweis, and Budweis is the former name of Ceské Budejovice, which is a small Czech town.

The Board was not persuaded, observing that there was no evidence that consumers would associate the mark BUDWEISER with a geographical location. Likewise as to the mark BUD, which is the more relevant mark here, there was no evidence that consumers would make a geographical connection.

There’s a lot more in John’s post, as usual, including the important issue of the role of a senior trademark holder’s fame in an opposition proceeding, which, as the TTAB’s opinion notes, while “not enough to establish likely confusion . . . puts a heavy thumb on Opposer’s side of the scale.”

 

Heavy thumb indeed (he said, foreshadowingly).

So I want to just think, together with you — which is better than thinking alone — about a couple of aspects of this opposition proceeding.

The first one is the “sweet home Ceské Budejovice” argument.  The Applicant, the TTAB tells us, must have had a few too many, you’d think, when it offered that argument, because

Applicant’s argument is essentially that BUD refers to BUDWEISER and BUDWEISER refers to someone or something from Budweis, and Budweis is the former name of Ceské Budejovice, which is a small Czech town. Even if each of Applicant’s premises is correct, we find this chain too attenuated to conclude that United States consumers would understand BUD to refer to something from the town formerly known as Budweis.

Ceske BudejoviceThat does sound loopy.  But of course that “essentially” is a tip off that Applicant didn’t quite say that.  Indeed, a page earlier the TTAB quotes, and then characterizes the argument as follows:

Applicant contends that Opposer’s BUDWEISER mark has a different connotation, because:

BUDWEISER is a town* in the Czech Republic (former Bohemia) famed not at all for viticulture, yet famed very much for brewing beer. Webster’s online dictionary defines Budweiser as “the name of a style of lager beer (similar to pilsner) from the city of Ceské Budejovice in Bohemia (Czech Republic), brewed since 1265. Its name is derived from the German name for the town, Budweis (something from Budweis being a Budweiser). . . . This dictionary definition of the term Budweiser inextricably links Opposer’s BUDWEISER brand to beer making, not wine making. Unlike WINEBUD, which is transparently composed of two common English nouns, BUDWEISER is obviously not composed of any words in the English language, being a Germanic place name, as well as a surname.

Applicant claims its analysis also applies to Opposer’s BUD mark, which Applicant says is an abbreviation of BUDWEISER, and that Applicant’s WINEBUD mark “is a fanciful coined compound noun in which the BUD has everything to do with viticulture, and nothing to do with a small town in Bohemia. Wine drinkers in the United States would naturally regard the latter half of the fanciful compound mark WINEBUD as connoting the bud of a vine, not as connoting BUDWEISER the beer brand or the BUD Family of Marks.”

That sounds a little more like an argument.  But the Board isn’t drinking that brew:

We are not persuaded by Applicant’s arguments. We find it very unlikely that relevant consumers perceive Opposer’s famous BUDWEISER trademark as suggesting a connection to what Applicant admits is “a small town in Bohemia.” There is no evidence in this record to suggest that any substantial number of United States beer consumers have even heard of Ceské Budejovice (or its formerly used German name, Budweis), or that they associate the BUDWEISER trademark with that town, rather than with Opposer and its products. Thus, even if the town formerly known as Budweis was the origin of the BUDWEISER trademark more than 150 years ago, there is no evidence that United States consumers are now likely to associate the mark with that geographical location, particularly in light of Opposer’s very long and extensive use of BUDWEISER as a trademark in this country, and the strong recognition, as we have discussed in considering the factor of fame, of BUDWEISER as a trademark for beer.

Further, any argument that BUDWEISER is geographically suggestive does not implicate Opposer’s BUD mark, which, as noted, is the mark most relevant to this proceeding. Even if we were to find that BUDWEISER suggests something coming from a town formerly called Budweis, we could not simply assume that BUD shares the same geographic connotation. There is no evidence of a town named “Bud,” or that anyone has ever referred to ?eské Bud?jovice as “Bud.”

Chicago INTA 032 copy
Three buds in a tavern.

All that may be worth reading just to have the experience of reading the words, “There is no evidence of a town named ‘Bud.'”  If only!!  The imagery — a sort of Thug’s Mansion or Planet of the Guys — aside, TTAB’s reasoning on the geography argument is pretty compelling.

Strictly speaking, the Applicant’s problem here was not BUDWEISER but BUD.  It was asking far too much to ask the Board to follow, even sober, the crooked line from “BUDWEISER isn’t much of a trademark for beer” to “BUD’s not any better than BUDWEISER” to “people don’t think of beer when they see BUD in the context of alcoholic beverages” (more on that last part alone below, however) — especially considering that quote above about the role of fame in LIKELIHOOD OF CONFUSION analysis.

Indeed, the Applicant’s reliance on any aspect of the Ceské Budejovice argument here is hard to understand.  Come on — BUDWEISER and BUD are huge, enormous, deluxe trademarks!  No matter how many dots you try to connect, the TTAB isn’t going to buy any argument containing the words, “Webster’s online dictionary defines Budweiser as ‘the name of a style of lager beer (similar to pilsner) from the city of Ceské Budejovice in Bohemia (Czech Republic), brewed since 1265.'” There’s nothing generic or descriptive about BUDWEISER in this country, bud.

Secondly, you’d have to be all but under the table to buy a distinction in trademark law between wine and beer — “Wine drinkers in the United States would naturally regard the latter half of the fanciful compound mark WINEBUD as connoting the bud of a vine, not as connoting BUDWEISER the beer brand” — and last time I checked under the table, I didn’t see any TTAB judges under there.  Far be it from LIKELIHOOD OF CONFUSION® to call out snark in legal briefs, for better or for worse, but even I was taken aback when I read this in the TTAB opinion:

As for its own mark, Applicant argues that consumers would not associate WINEBUD with Opposer or its goods because

Applicant’s mark is WINEBUD.

Wine comes from grapes. Grapes grow on vines. Vines have buds.

“Vine bud” is a recognized term in the field of viticulture.

citizen-kane-rosebud-895f1
Tough sledding for Applicant.

It may not have been meant that way, but the use of the short, staccato sentences, “Let me explain this to you slowly” is one thing on Twitter.  It may not be the way to go, however, on an appeal before the TTAB.  Notwithstanding the attempt at “lawsplaining” to the TTAB that not only are wine and beer different, but also that every vintner knows there’s something called a vinebud, see, and … well, as the Board said,

The problem with this argument is that a mention in a single winery trade article is insufficient for us to find that “vine bud” is “a recognized term in the field of viticulture,” let alone a term recognized by the usual purchasers of wine or beer. Besides, the mark at issue is WINEBUD, not vine bud, and there is no evidence that WINEBUD has any meaning whatsoever.

So stop your vining, Applicant!

Still and all, it is interesting to note that John, at his post, makes this point:

As they say, That Bud! That’s Wine! There are not many marks as famous as BUD, other than TTABlog. I think the Board should have also considered the dilution issue, since the Section 2(d) [likelihood of confusion] ruling may be a little shaky. What do you think?

Why does John think the ruling was a little shaky?  He doesn’t say, but I’ll guess it has to do with the overall premise of the decision that the English word “bud” is, for purposes of alcoholic beverages, no longer an English word, but a trademark of Anheuser Busch only. For example, the very next sentence in the opinion after the one quoted above is:

Although consumers might well view WINEBUD as a combination of WINE and BUD, they are more likely to understand WINE as being the generic name for the beverage, and BUD, because of the fame of Opposer’s mark, as the source identifying portion of the mark, i.e., as showing origin in Opposer.

Family of Marx
Family of Marx.

They are?  I mean, the second part?  You’d think a made-up word where the second component is “bud” is, if it comes in a bottle, something from Anheuser Busch?

“Rosebud”?

“Flower Bud”?

You’d think, in fact, that any product being sold by Budweiser would put the BUD in the second half of the brand formulation?

I don’t.  And I don’t know what to do with this, also from the opinion:

[E]ven construing the survey in the best light for Applicant, the results suggest that at the 95 percent confidence level, at least 17.5 percent of the relevant population is likely to be confused by Applicant’s use of its mark for wine. While that figure would not be considered a high level of confusion, neither is it negligible or de minimis.

It’s not?

Not for Anheuser Busch.  Although the TTAB did not rule on the question of AB’s assertion of a “family of marks” here, because it did not have to, its continued rejection of that doctrine in name seems belied by its deference to big brands making big claims.  Anything-bud is ‘Weiser-BUD?  Seventeen percent confusion is a LIKELIHOOD OF CONFUSION?

Divine Right.

Well, as a commenter on John’s blog wrote (after I started this post, actually):

I think you have to be a bit reckless to think that you can register a “bud” mark for any type of alcoholic beverage in this country. It’s a waste of money and time. Not sure why an examiner would pass it on, but once it got opposed, not sure why you continued, especially making bogus arguments about the city of Budweis, claiming that Bud is geographically descriptive, etc. in the U.S. Maybe that might fly in the Czech Republic, but 150 years of use in the US, that shipped sailed a long time ago. . . .

Sadder now, but wiser, Applicant must surely realize that this was, at last call, all that every really mattered here. It’s good to be the King of Beers!

____________________

*Interesting footnote here from the opinion:

This is apparently a misstatement. Evidence submitted by Applicant indicates that “Budweiser” is “an adjective in German language [sic] describing something or someone from the Bohemian city Budweis (?eské Bud?jovice), which until 1919 was part of the Austrian Empire” App. Not. of Reliance, 34 TTABVue 21–23 (http://www.websters-online-dictionary.org/ (July 25, 2011)) (emphasis added). The same source goes on to note that BUDWEISER is “a trademark for two beer companies,” one of which is Opposer.

Ron Coleman

I write this blog.