Once in a BLUE MOON marks are allowed to coexist

In In re Coors Brewing Company, the US Court of Appeals for the Federal Circuit has allowed Coors's application to register BLUE MOON for beer, even though another party owns an earlier BLUE MOON mark for restaurant services. The court held that the marks should be allowed to coexist as the goods and services covered by the registrations differ sufficiently to eliminate the likelihood of confusion.

Coors's application to register BLUE MOON and design for beer was initially refused based on earlier registrations for (i) BLUE MOON for wine, and (ii) BLUE MOON and design for restaurant services. On appeal, the Trademark Trial and Appeal Board (TTAB) withdrew the refusal based on the registration for wine but affirmed it with regard to the registration for restaurant services. It found that wine and beer, though both alcoholic beverages that are sometimes sold by the same party under the same mark, are not sufficiently related that the contemporaneous use of similar marks on the two products is likely to cause confusion as to source. On the other hand, the TTAB upheld the refusal to register Coors's mark in view of the registration of BLUE MOON and design for restaurant services based on evidence indicating that beer and restaurant services are related. The evidence showed that some:

• brewpubs (establishments that sell beer brewed on the premises) are also restaurants;
  
  
• restaurants sell their own private label beer; and
  
  
• businesses have registered a single mark for both beer and restaurant services.

On appeal from the TTAB, the Federal Circuit reversed. It held that the evidence put forward to demonstrate that beer and restaurant services are related was not sufficient. Specifically, the TTAB had reasoned that they could be found to be related, if evidence of "something more" supported such a finding. However, the Federal Circuit concluded that, in this case, this level of evidence had not been reached. It stated that the number of brewpubs that are also restaurants is very small. It also noted that the number of (i) restaurants selling their own private label beer, and (ii) businesses that have registered a single mark for both beer and restaurant services were comparatively low.

The Federal Circuit was also mindful that consideration of the relatedness of goods and/or services in a likelihood of confusion analysis cannot be divorced from other factors, particularly the similarity between the marks. Here, the court concluded that the respective marks, although both incorporating the identical wording BLUE MOON, differed significantly in terms of their presentation. Moreover, evidence that the term 'Blue Moon' is widely used for restaurants and within the US food industry rendered the similarities between Coors's mark and the BLUE MOON restaurant mark at issue less compelling.

Karin Segall, Darby & Darby, New York