Distiller Rabbit Hole Spirits Must Drown its Sorrows After Odd Loss of Appeal at TTAB

On September 9, 2015 Scott Slavick's article, "Pour Me Another, Barman. Make it a Double-Take" was published on InsideCounsel.com.

TTAB Decisions Redefining Trademark Judicial System, Says Slavick

In a recent ruling, the TTAB seems to have gone down a rabbit hole and popped out with something so counter-intuitive it forces you to look twice, says Brinks' Scott Slavick in a recent article for InsideCounsel.com.

In In re Rabbit Hole Spirits, LLC, the Board affirmed a USPTO examiner's refusal to register the mark Moonshine Redefined for Rabbit Hole Spirits, for "distilled spirits; liquor; whiskey," finding it confusingly similar to Swedish company Purity Vodka's Redefining Vodka mark for "alcoholic beverages, except beers." The Board held that even suggestive and therefore weak marks like Redefining Vodka are entitled to protection against confusingly similar marks. It then went further to hold that the parties' marks are similar in appearance and pronunciation, concluding that those similarities far outweighed their differences.

The Board gave a heightened scope of protection to an arguably marginal, moderately descriptive mark, says Slavick, while giving short shrift to looking at the parties' marks as a whole. He questions whether doing so best serves the judicial system, especially in light of the recent Supreme Court decision in B&B Hardware v. Hargis Industries, which determined that TTAB decisions have preclusive effect on parallel or later cases in Federal district court.

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