Dan Cook and David Cook

Trademark Trial and Appeal Board

Jan 29, 1999

No. 75008728 (T.T.A.B. Jan. 29, 1999)

Paper No. 9
SIMMS/md
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT OF THE
TTAB JAN. 29, 99
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Dan Cook and David Cook
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Serial No. 75/008,728
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Bernhard Kreten for Dan Cook and David Cook dba St. Helena
Brewing Company.
Samuel E. Sharper, Jr., Trademark Examining Attorney, Law
Office 101 (Christopher Wells, Managing Attorney)
_______
Before Sams, Simms and Quinn, Administrative Trademark
Judges.
Opinion by Simms, Administrative Trademark Judge:
Dan Cook and David Cook doing business as St. Helena
Brewing Company (applicants) have appealed from the final
refusal of the Trademark Examining Attorney to register the
mark SILVERADO ALE for beer.1 The Examining Attorney has

1 Application Serial No. 75/008,728, filed October 20, 1995,
based upon applicants’ bona fide intention to use the mark in
commerce under Section 1(b) of the Act, 15 USC §1051(b). In
their appeal brief applicants have submitted a disclaimer of the
word “ALE” apart from the mark as shown.
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refused registration under Section 2(d) of the Act, 15 USC
§1052(d), on the basis of Registration No. 1,130,989,
issued February 12, 1980 (combined Sections 8 and 15 filed)
for the mark SILVERADO for vodka, and Registration No.
1,212,658, issued October 12, 1982 (combined Sections 8 and
15 filed) covering the mark shown below for vodka.
According to Office records, these registrations are
currently owned by Guild Wineries and Distilleries
Corporation.
We affirm.
Essentially, the Examining Attorney argues that
applicants’ mark and the registrant’s marks all contain a
dominant feature (the word SILVERADO) such that the
respective marks are very similar in sound, appearance and
meaning. The Examining Attorney has also pointed out that
applicants have made no arguments with respect to the
similarities of the marks at issue.
With respect to the goods, the Examining Attorney
argues that beer and vodka are related alcoholic beverages
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3
which may be sold in the same channels of trade to the same
class of prospective purchasers. That is to say, these
goods may be found in liquor stores and bars and a typical
consumer may drink more than one type of beverage and may
shop for different alcoholic beverages in the same liquor
stores, according to the Examining Attorney. Finally, the
Examining Attorney argues that these goods are not
necessarily expensive items requiring careful thought or
expertise in their purchase but may be purchased on a
casual basis. The Examining Attorney relies upon the case
of Schieffelin & Co. v. Molson Companies Ltd., 9 USPQ2d
2069 (TTAB 1989), wherein the Board found likelihood of
confusion between the marks BRAS D’OR for brandy and BRADOR
for beer.
In their appeal brief, applicants indicate that
shortly after the filing of this application applicants
began using their mark in association with their goods as
well as their microbrewery. Applicants argue that the
goods are different, that the consumers to whom the goods
are directed are different classes of consumers and that
the trade channels in which the goods travel are distinct.
In this regard, applicants argue that their beer is brewed
in a microbrewery in Napa Valley, California, and sold
through this brewery to clientele who are traveling through
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4
the Napa Valley. Vodka, on the other hand, is sold in
liquor stores and bars and would not be found at
applicants’ microbrewery, according to applicants.
Applicants also argue that distilled beverages such as
vodka are more expensive and are considered to be a
“sophisticated drink.”
The average consumer would not be
confused between vodka, the
registrant’s goods and applicant’s
[sic] beer produced and sold in a
micro-brewery. Even if these goods
were sold in the same environment, for
example a grocery store, consumers
would still not likely be confused
thereby… The consumer who is
interested in consuming this type of
hard liquor, will not confuse this
product with “beer” produced and sold
in a micro-brewery.
Applicants’ appeal brief, 5.
As the Examining Attorney has noted, the problem with
applicants’ argument is that there is no restriction with
respect to the channels of trade in applicants’
application, or, for that matter, in the registrations.
Accordingly, we must presume that the respective products
travel in all normal channels of trade for those alcoholic
beverages to all normal purchasers of those goods. See
Canadian Imperial Bank of Commerce v. Wells Fargo Bank, 811
F.2d 1490, 1 USPQ2d 1813, 1816 (Fed. Cir. 1987).
Accordingly, without any restriction, we must assume that
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5
applicants’ beer and registrant’s vodka are sold in some of
the same retail liquor stores and bars.
Of course, we agree with applicants that consumers are
not likely to purchase applicants’ beer thinking that it is
registrant’s vodka. But this kind of mistake is not the
only kind of confusion that is intended to be prevented by
Section 2(d) in the Act. In this case, the question is
whether a consumer, aware of registrant’s SILVERADO vodka
who then sees applicants’ SILVERADO ALE will be likely to
believe that both products come from the same source or
that registrant has sponsored or approved of applicants’
beer. We agree with the Examining Attorney that this type
of confusion is likely. As the Examining Attorney
contends, consumers may drink more than one type of
alcoholic beverage and may shop for different alcoholic
beverages in the same liquor store. Also, the fact that
these goods are sold under almost identical marks is a
strong factor contributing to our belief that confusion is
likely.
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Decision: The refusal of registration is affirmed.
J. D. Sams
R. L. Simms
T. J. Quinn
Administrative Trademark
Judges, Trademark Trial and
Appeal Board
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