Harlequin Enterprises Limited

Trademark Trial and Appeal Board

Sep 7, 2017

No. 86761280 (T.T.A.B. Sep. 7, 2017)

This Opinion is Not a
Precedent of the TTAB
Mailed: September 7, 2017
UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Harlequin Enterprises Limited
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Serial No. 86761280
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Cristina N. Rubke of Shartsis Friese LLP
for Harlequin Enterprises Limited.

Richard F. White, Trademark Examining Attorney, Law Office 123,
Susan Hayash, Managing Attorney.
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Before Kuhlke, Adlin and Hightower,
Administrative Trademark Judges.

Opinion by Adlin, Administrative Trademark Judge:
Harlequin Enterprises Limited (“Applicant”), a well-known purveyor of romance
novels, seeks to register the mark shown below

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(VINTAGES disclaimed) for “wine.”1 The Examining Attorney refused registration
under Section 2(d) of the Act on the ground that Applicant’s mark so resembles the
previously-registered mark HARLEQUIN, in typed form, for “liqueur”2 that use of
Applicant’s mark in connection with Applicant’s goods is likely to cause confusion or
mistake or to deceive. After the refusal became final, Applicant appealed and
Applicant and the Examining Attorney filed briefs.
Our determination under Section 2(d) is based on an analysis of all probative facts
in evidence that are relevant to the likelihood of confusion factors set forth in In re
E.I. du Pont de Nemours & Co., 476 F.2d 1357, 177 USPQ 563, 567 (CCPA 1973). See
also In re Majestic Distilling Co., 315 F.3d 1311, 65 USPQ2d 1201, 1203 (Fed. Cir.
2003). In any likelihood of confusion analysis, two key considerations are the
similarities between the marks and the similarities between the goods. See Federated
Foods, Inc. v. Fort Howard Paper Co., 544 F.2d 1098, 192 USPQ 24, 29 (CCPA 1976)
(“The fundamental inquiry mandated by § 2(d) goes to the cumulative effect of
differences in the essential characteristics of the goods and differences in the
marks.”). However, before addressing these and the other relevant likelihood of

1 Application Serial No. 86761280, filed September 18, 2015 under Section 1(b) of the
Trademark Act, based on an intent to use the mark in commerce. The application includes
this description of the mark: “The mark consists of a book motif featuring the image of a spine
of a book with the title VINTAGES BY HARLEQUIN running from the top to bottom of the
spine. A decorative border, which features two curved scroll designs opposing one another
with a triangle to either side of the scroll designs and an oval in the middle, ornaments on
the top and bottom of the words VINTAGES BY HARLEQUIN. Under the bottom border,
there is a diamond logo with an H in the middle and the word HARLEQUIN below the
diamond. The background has an aged texture on the right edge and towards the top and
bottom.”
2 Registration No. 1405205, issued August 12, 1986; renewed.
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confusion factors, we must address Applicant’s primary, overarching argument,
which is that its fame in connection with romance novels makes confusion between
its wine and Registrant’s liqueur unlikely.
Does Applicant’s Fame for Romance Novels Make
Confusion Between its Wine and Registrant’s Liqueur Unlikely?

Applicant has introduced impressive and undisputed evidence, which we accept
and find probative and convincing, that its HARLEQUIN mark is quite famous for
romance novels. Applicant has also established that it is attempting to extend and
leverage its famous HARLEQUIN brand by associating it with a new product, wine.
Vintages by Harlequin was envisioned as an extension
of the Harlequin brand into the branded wine space. The
concept for the label was directly developed from vintage
Harlequin book covers. The front label is designed as a
book cover, with a prominent title. In lieu of the author’s
name, we added the wine varietal. In addition, the vertical
branding on the left hand side of the front label was
designed to replicate the spine of a classic Harlequin mass
market paperback book. The back label for Vintages by
Harlequin was designed to mimic the back cover copy found
on Harlequin mass market paperback books.

Our expectation is that the wine will appeal to
Harlequin book readers as they will recognize the format
of the front and back labels and associate it with Harlequin
books. In addition, our marketing capabilities will enable
us to promote the Harlequin wine with Harlequin books,
whether online (for example, selection of book and wine
pairings) or in physical retail (with on shelf promotions
such as shelf talkers in the book section of a retailer where
both books and wine are sold).

Declaration of Simeen Mohsen, Applicant’s Vice-President, Strategy and Integration
¶¶ 4-5 (submitted with Office Action response of July 13, 2016). Ms. Mohsen’s
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description of Applicant’s wine front labels is effectively illustrated by this listing
from amazon.com:

Office Action response of July 13, 2016. And her description of Applicant’s promotion
of VINTAGES BY HARLEQUIN wine together with HARLEQUIN books is
illustrated by marketing material accompanying the Amazon listing depicted above:
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Id.
Based on this and similar evidence, Applicant argues that “consumers in the U.S.
are familiar enough with the Applicant’s romance novel brand, that they would
recognize the applied-for Book Spine Design Mark on a bottle of wine and
immediately associate the wine with the romance novel brand.” 4 TTABVUE 10
(Applicant’s Appeal Brief at 9). In fact, Applicant presents some evidence which tends
to support the argument. For example, one Amazon reviewer of Applicant’s wine
stated: “… I haven’t tried the wine yet, but the labels are fabulous … Now waiting for
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a special occasion to crack open a Harlequin romance and drink my wine!” Office
Action response of July 13, 2016 (“amazon.com” review by Patti TheLoveJunkee).
Another stated: “I ordered this wine ONLY because of the label, because a friend got
a novel published and I wanted something cute and funny and theme-appropriate
….” Id. (“amazon.com” review by BC).
While we accept that Applicant’s HARLEQUIN mark is famous for romance
novels, and that some consumers will (at least after examining Applicant’s wine and
the associated trade dress and marketing materials) likely associate Applicant’s wine
with its books, Applicant’s fame does not make confusion unlikely. And Applicant’s
marketing and other efforts to associate its wine with its books, which are not
reflected in its application or most importantly the drawing of Applicant’s mark, are
essentially irrelevant to the likelihood of confusion analysis. In fact, we recently
rejected arguments analogous to those Applicant makes here in In re I.Am.Symbolic,
LLC, 116 USPQ2d 1406 (TTAB 2015) (hereinafter “I.Am.Symbolic Board Decision”),
aff’d, __ F.3d __, __ USPQ2d ___, 2017 WL 3393456 (Fed. Cir. Aug. 8, 2017)
(hereinafter “I.Am.Symbolic Circuit Decision”); see also In re Shell Oil Co., 992 F.2d
1204, 26 USPQ2d 1687, 1690 (Fed. Cir. 1993) (“A newcomer does not gain the right
to register a substantially identical mark simply because the number of persons
exposed to the registrant’s mark may be small in relation to the newcomer’s volume
of use.”).
In I.Am.Symbolic, the applicant owned trademarks associated with musician
William Adams, the Black Eyed Peas frontman known professionally as “will.i.am.”
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It sought registration of I AM, in standard characters, for cosmetics and related
products, but was refused based on a prior registration for an identical mark for
perfume. In an attempt to circumvent the refusal, applicant amended its application
to specify that the identified goods are all “associated with William Adams,
professionally known as ‘will.i.am,’” and argued that this limitation and will.i.am’s
fame as a musician and performer made confusion unlikely. We were not persuaded
there, nor are we persuaded by Applicant’s analogous arguments in this case. In fact,
even if Applicant had limited its goods in this case to wine “associated with”
HARLEQUIN books or Harlequin Enterprises Limited, or added a similar limitation,
which it has not, that would not change the result here, any more than it did in
I.Am.Symbolic. As held in I.Am.Symbolic Circuit Decision at *10, “to the extent the
Board agreed with Symbolic that Adams or the mark are famous, such a finding
would not support registration of the mark.”
The point is that we must compare Applicant’s mark, as presented in the drawing
submitted with its application, to Registrant’s mark depicted in the cited registration.
SCM Corp. v. Royal McBee Corp., 395 F.2d 1018, 158 USPQ 36, 37 n.4 (CCPA 1968)
(“Certain exhibits reflect the parties’ current practice of associating their house marks
‘SCM’ and ‘Royal’ with ‘ELECTRA’ and ‘ELECTRESS’, respectively. However, our
concern here, of course, is whether ‘ELECTRA’, the mark actually registered, and
‘ELECTRESS’, the mark for which registration is sought, are confusingly similar
when applied to the instant goods.”); Denney v. Elizabeth Arden Sales Corp., 263 F.2d
347, 120 USPQ 480, 481 (CCPA 1959) (“In determining the applicant’s right to
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registration, only the mark as set forth in the application may be considered ….”);
Bellbrook Dairies, Inc. v. Hawthorn-Mellody Farms Dairy, Inc., 253 F.2d 431, 117
USPQ 213, 214 (CCPA 1958) (“The fact that each of the parties applies an additional
name or trademark to its product is not sufficient to remove the likelihood of
confusion. The right to register a trademark must be determined on the basis of what
is set forth in the application rather than the manner in which the mark may be
actually used.”).
In other words, any source identifiers or other marketing devices which are not
reflected in the drawing of Applicant’s applied-for mark are irrelevant to our
determination, including because they could in the future change or be eliminated.
In re Shell Oil, 26 USPQ2d at 1690 n.4 (“Although Shell argues that its use of RIGHT-
A-WAY would be in association with other Shell trademarks, the proposed
registration is not so limited. Registrability is determined based on the description in
the application, and restrictions on how the mark is used will not be inferred.”);
Kimberly-Clark Corp. v. H. Douglas Enterprises, Ltd., 774 F.2d 1144, 227 USPQ 541,
543 (Fed. Cir. 1985); Jim Beam Brands Co. v. Beamish & Crawford Ltd., 937 F.2d
729, 19 USPQ2d 1352, 1356 (2d Cir. 1991). In short, while Applicant’s arguments
would be appropriate in a trademark infringement case in court, where “the district
court considers the full range of a mark’s usages, not just those in the application,”
they are not appropriate here, where we consider only the mark depicted in the
application’s drawing page. See B&B Hardware, Inc. v. Hargis Industries, Inc., 135
S. Ct. 1293, 113 USPQ2d 2045, 2049, 2054-55 (2015). Indeed, if Applicant ultimately
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obtains the registration it seeks for the mark in its drawing, it would be entitled to
use that mark, alone, without the other indicia that Applicant’s wine is offered by the
source of Harlequin romance novels. See In re Helene Curtis Industries, Inc., 363 F.2d
936, 150 USPQ 668 (CCPA 1966). For this reason, we compare the mark in the cited
registration to the mark in Applicant’s drawing, without regard to other marks,
labels, marketing materials or anything else not reflected in the drawing.
Similarly, we compare the goods identified in the cited registration, liqueur, to the
goods identified in the involved application, wine, rather than to books or other
products or services.
The authority is legion that the question of registrability of
an applicant’s mark must be decided on the basis of the
identification of goods set forth in the application
regardless of what the record may reveal as to the
particular nature of an applicant’s goods, the particular
channels of trade or the class of purchasers to which sales
of the goods are directed … Thus, it was not error, as OSI
argues, for the board to give no weight to OSI’s evidence
purporting to show that OCTOCOM modems are brought
(sic) by a particular class of purchasers. It would have been
error to do otherwise. Because OSI seeks an unrestricted
registration, such evidence as there is of a specific class of
customers did not relate to a material fact.

Octocom Syst. Inc. v. Houston Computers Svcs. Inc., 918 F.2d 937, 16 USPQ2d 1783,
1787 (Fed. Cir. 1990); see also Stone Lion Capital Partners, L.P. v. Lion Capital LLP,
746 F.3d 1317, 110 USPQ2d 1157, 1162 (Fed. Cir. 2014) (“It was proper, however, for
the Board to focus on the application and registrations rather than on real-world
conditions ….”).3 In other words, while Applicant has established that at least some

3 This would be the case even if Applicant had indicated, in its identification of goods, that
its wine is associated with HARLEQUIN books or with Applicant. In re I.Am.Symbolic Board
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of its labels and marketing materials associate Applicant’s wine with Applicant’s
books, there is nothing in Applicant’s identification of goods which would limit
Applicant’s use of the applied-for mark to wine specifically associated with, or
intended to call to mind, Applicant’s books or other HARLEQUIN marks, goods or
services. In re I.Am.Symbolic Circuit Decision, 2017 WL 3393456 at *4 (“It is well
established that the Board may not read limitations into an unrestricted registration
or application.”) (citing SquirtCo v. Tomy Corp., 697 F.2d 1038, 216 USPQ 937, 940
(Fed. Cir. 1983) and 15 U.S.C. § 1057(b)). Rather, if granted the registration it seeks,
Applicant would enjoy the benefits of registration of its mark for any and all “wine,”
regardless of whether it is associated in any way with Applicant, its HARLEQUIN
marks or its goods and services.
In short, Applicant’s fame for romance novels does “not support registration of the
mark.” I.Am.Symbolic Circuit Decision, 2017 WL 3393456 at *10. And Applicant’s
marks and devices used in promoting its wine which are not reflected in the
application’s drawing page are irrelevant to our analysis. Our task is simply to
compare the mark in the application’s drawing, and the goods identified in the
application, to the mark and goods in the cited registration.
Is There a Likelihood of Confusion?
While Applicant’s mark includes a design and additional words absent from the
cited mark, the marks are nonetheless more similar than dissimilar “in their

Decision, 116 USPQ2d at 1410 (indication that goods are “associated with William Adams,
professionally known as ‘will.i.am.’” does not “alter the nature of the goods identified …”).
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entireties as to appearance, sound, connotation and commercial impression.” Palm
Bay Imports Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369,
73 USPQ2d 1689, 1691 (Fed. Cir. 2005) (quoting du Pont, 177 USPQ at 567). In fact,
consumers familiar with Registrant’s HARLEQUIN liqueur who encounter
Applicant’s mark may very well perceive it to be an extension of Registrant’s
HARLEQUIN brand of liqueur into wine. Indeed, “VINTAGES BY HARLEQUIN”
conveys that Harlequin is the source and that the goods are a type of wine, as
“vintage” means “the yield of wine or grapes from a vineyard or district during one
season” and “wine, usually of high quality, identified as to year and vineyard or
district of origin.” Office Action of January 13, 2016 (definition from The American
Heritage Dictionary of the English Language).
For example, in affirming a refusal to register VANTAGE TITAN based on a
registration for TITAN, we stated: “Applicant has taken registrant’s mark and added
its ‘product mark’ to it. It is not clear why the addition of the word VANTAGE would
avoid confusion. It is more likely to be considered another product from the previously
anonymous source of TITAN medical diagnostic apparatus, namely, medical
ultrasound devices.” In re Toshiba Medical Systems Corp., 91 USPQ2d 1266, 1271
(TTAB 2009). See generally, Stone Lion Capital, 110 USPQ2d at 1162 (finding
STONE LION CAPITAL confusingly similar to LION and LION CAPITAL); In re
Fiesta Palms LLC, 85 USPQ2d 1360, 1367 (TTAB 2007) (affirming refusal to register
CLUB PALMS MVP based on prior registration of MVP, finding consumers “likely to
believe that the CLUB PALMS MVP casino services is simply the now identified
Serial No. 86761280
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source of the previously anonymous MVP casino services”); In re Pierce Foods Corp.,
230 USPQ 307, 309 (TTAB 1986) (in dicta, stating that even if Applicant’s proposed
amendment to its drawing was accepted, “Applicant’s institutional purchasers, aware
of registrant’s CHICKEN BAKE coating mix, may well believe that applicant’s
PIERCE CHICK’N BAKE pre-seasoned chicken is a product produced under license
from registrant or otherwise sponsored or produced by registrant.”); In re Riddle, 225
USPQ 630 (TTAB 1985) (affirming refusal to register RICHARD PETTY’S ACCU
TUNE & Design based on registration for ACCU-TUNE); In re Christian Dior, 225
USPQ 533 (TTAB 1985) (LE CACHET DE DIOR for men’s dress shirts likely to be
confused with CACHET for toilet soap, dresses and cologne); Key West Fragrance &
Cosmetic Factory, Inc. v. The Mennen Company, 216 USPQ 168 (TTAB 1982) (finding
likelihood of confusion between SKIN SAVERS for face and throat lotion and
MENNEN SKIN SAVER for cosmetic and toilet preparations, namely, hand and body
lotion); In re Champion International Corp., 196 USPQ 48 (TTAB 1977) (affirming
refusal to register CHECK MATE based on registration of HAMMERMILL MICR
CHECK-MATE); In re C.F. Hathaway, 190 USPQ 343 (TTAB 1976) (affirming refusal
to register HATHAWAY GOLF CLASSIC based on registration of GOLF CLASSIC).
In this case, the dominant portion of both marks is the identical term
HARLEQUIN. Obviously, that is the entirety of Registrant’s mark, and the term
VINTAGES in Applicant’s mark is descriptive of if not generic for wine and
disclaimed. It is settled that descriptive and disclaimed terms such as VINTAGES
are entitled to less weight in our analysis. Cunningham v. Laser Golf Corp., 222 F.3d
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943, 55 USPQ2d 1842, 1846 (Fed. Cir. 2000) (“Regarding descriptive terms, this court
has noted that the ‘descriptive component of a mark may be given little weight in
reaching a conclusion on the likelihood of confusion.’”) (quoting In re Nat’l Data, 224
USPQ at 752); In re Dixie Rests., Inc., 105 F.3d 1405, 41 USPQ2d 1531, 1533-34 (Fed.
Cir. 1997); In re Binion, 93 USPQ2d 1531, 1534 (TTAB 2009) (BINION’S, not
disclaimed word ROADHOUSE, is dominant element of BINION’S ROADHOUSE);
In re Code Consultants, Inc., 60 USPQ2d 1699, 1702 (TTAB 2001) (disclaimed matter
is often “less significant in creating the mark’s commercial impression”). While the
term “BY” in Applicant’s mark is not disclaimed, it merely communicates that the
source of Applicant’s wine is HARLEQUIN, i.e. that the VINTAGES wine is “by
Harlequin.” Applicant concedes as much, and as explained above even bases its
primary argument on this point, arguing that consumers will perceive BY
HARLEQUIN as a reference to Applicant. The problem is that HARLEQUIN also
identifies the source of prior Registrant’s liqueur, a product which, as explained
below, is related to wine. Confusion as to the source of Applicant’s and Registrant’s
alcoholic beverages is likely because at bottom the goods are identified by the
identical term HARLEQUIN.
We have not ignored the design element of Applicant’s mark, and acknowledge
that it resembles a book spine. However, HARLEQUIN (or perhaps in Applicant’s
case VINTAGES BY HARLEQUIN) is the term consumers will use to call for the
goods because it is literal. In re Appetito Provisions Co. Inc., 3 USPQ2d 1553, 1554
(TTAB 1987) (holding that “if one of the marks comprises both a word and a design,
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then the word is normally accorded greater weight because it would be used by
purchasers to request the goods or services” and “because applicant’s mark shares
with registrant’s mark that element responsible for creating its overall commercial
impression, the marks are confusingly similar”); see also In re Viterra Inc., 671 F.3d
1358, 101 USPQ2d 1905, 1911 (Fed. Cir. 2012) (“the verbal portion of a word and
design mark likely will be the dominant portion”). Furthermore, Applicant’s mark
resembles a book spine not only because of its design elements, but also, and perhaps
more importantly, because VINTAGES BY HARLEQUIN is displayed the way a title
is displayed on a book spine. This further highlights the literal element of Applicant’s
mark. In fact, just as a book title on a book spine identifies the book, in this case
VINTAGES BY HARLEQUIN identifies HARLEQUIN, which is identical to the cited
mark, as the source of Applicant’s wine. Neither the “diamond logo with an H in the
middle” nor the “two curved scroll designs” in Applicant’s mark, both of which are
relatively small, detract from the dominance of the literal element VINTAGES BY
HARLEQUIN.
In short, because the marks are more similar than dissimilar, this factor weighs
in favor of finding a likelihood of confusion.4

4 See United Rum Merchants Ltd. v. Fregal, Inc., 216 USPQ 217, 220-21 (TTAB 1982) (“due
to imperfect recall and the similarity of the marks, purchasers of applicant’s sherry wine
might well assume that it was opposer’s product regardless of inherent differences between
sherry wine and coffee-based liqueur; or, perhaps more likely, and even where recall was
accurate, purchasers might assume that ‘TIA LOLA’ was the special designation of opposer
for an extension of its product line to aperitif wines, particularly because of frequent usage
and currency of the ‘TIA’ reference to order opposer’s liqueur or to identify opposer’s liqueur
…”).

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As for the goods, the Examining Attorney has introduced substantial evidence
that liqueur and wine are related, so much so that some liqueurs contain wine and
some wineries also produce liqueurs, apparently under the same trade name or
trademark:

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Serial No. 86761280
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Office Action of January 13, 2016.5

5 Similar evidence is included with the Office Action of August 16, 2016.
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The Examining Attorney also relies on a large number of registrations owned by
different third parties for marks used on both liqueurs and wine, including:
MARCO ABELLA in standard characters (Reg. No.
4651564) is registered for “wines, sparkling cava wines,
spirits and liqueurs.”

(Reg. No. 4612598) is registered for “… wines
and liqueurs ….”

PHILIP CARTER in standard characters (Reg. No.
4560377) is registered for “… wines and liqueurs ….”

XIWINE (Stylized) (Reg. No. 4683700) is registered for
“liqueurs … wine.”

LA CASTELLANA in standard characters (Reg. No.
4737807) is registered for “… wines and liqueurs.”

DOMAINE FRANCO CHINOIS & Design (Reg. No.
4856458) is registered for “… wine; liqueurs ….”

BELLA VALLEY (Stylized) (Reg. No. 4823522) is
registered for “… liqueurs … wine ….”

THE FRENCH WARRIOR AND NOBLE WINEMAKER in
standard characters (Reg. No. 4884847) is registered for
“spirits and liqueurs …wine.”

Office Action of January 13, 2016.6 “Third-party registrations which cover a number
of differing goods and/or services, and which are based on use in commerce, although
not evidence that the marks shown therein are in use on a commercial scale or that
the public is familiar with them, may nevertheless have some probative value to the

6 The Examining Attorney submitted 10 additional third-party registrations owned by
different entities for marks used for both wine and liqueur. Office Action of August 16, 2016.
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extent that they may serve to suggest that such goods or services are of a type which
may emanate from a single source.” See, In re Mucky Duck Mustard Co., 6 USPQ2d
1467, 1470 n.6 (TTAB 1998); see also In re Davey Prods. Pty. Ltd., 92 USPQ2d 1198,
1203 (TTAB 2009). This plentiful evidence convinces us that wine and liqueur are
related.
Moreover, the channels of trade for wine and liqueur overlap, in both the brick
and mortar world and online:

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21

Id. This evidence convinces us that wine and liqueur also have overlapping channels
of trade.7
Applicant introduced evidence intended to show that HARLEQUIN is
commercially weak for wine:

7 Similar evidence is included with the Office Action of August 16, 2016. While the evidence
of overlapping trade channels consists entirely of website printouts, many of the websites not
reproduced in this decision make clear that the wine and liqueurs listed online are also
available in retail locations, often including the source winery or distillery itself.
Serial No. 86761280
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Office Action response of July 13, 2016. We are not persuaded by this evidence that
Registrant’s mark is so weak that it is not entitled to protection against Applicant’s
similar mark used on related goods. In the first three examples, it is clear that the
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wineries (sources) producing the wines are VERITAS, BROKENWOOD and
WARWICK VALLEY WINERY & DISTILLERY, and that “Harlequin” is merely used
in the names of a particular type of wine offered by each of these sources. While it is
less clear from the fourth example which name identifies the winery or source and
which the particular type of wine, there is no indication that this wine is offered in
the United States. In any event, three (or four) examples of wine names including
HARLEQUIN are not enough for us to find that Registrant’s mark is so weak that
Applicant’s mark is entitled to coexist with it on the register, especially where
Applicant has not identified any third-party registrations for HARLEQUIN marks
used for liqueur other than Registrant’s.8
Conclusion
Neither Applicant’s fame nor its association of its wine with its HARLEQUIN
mark and romance novels make confusion unlikely. Here confusion is likely, because
even assuming that Registrant’s mark is mildly diluted by the few competing uses of
HARLEQUIN in wine names, Applicant’s mark is similar to Registrant’s mark and
consumers are likely to perceive Applicant’s wine to be a brand extension of
Registrant’s HARLEQUIN liqueur. Moreover, the goods are related and their
channels of trade overlap.
Decision: The Section 2(d) refusal to register Applicant’s mark is affirmed.

8 We do not find Registration No. 4295161 for the mark ARLEQUIN WINE MERCHANT for
wine store, wine club and other wine-related services to be relevant here because the mark
does not include HARLEQUIN.