Decisions · 85826258
In re Bay State Brewing Company, Inc.
Serial No. 85826258 · Decided 2016-02-25 · Section 2(d) Ex Parte Appeal
What happened
Refusal affirmed — the Board found TIME TRAVELER BLONDE for beer too similar to the registered mark TIME TRAVELER for beer, ale and lager, and held that the parties' consent agreement did not outweigh confusion because it allowed both marks to be used in overlapping territory and lacked meaningful safeguards.
The marks
Applicant
TIME TRAVELER BLONDE (standard characters, BLONDE disclaimed)
"Beer" in International Class 32
Cited registration
TIME TRAVELER (standard characters)
"Beer, ale and lager" in International Class 32
How the marks compared
| Dimension | Finding | What the Board said |
|---|---|---|
| sound | Similar | TIME TRAVELER is the dominant portion of both marks and is pronounced identically; the disclaimed beer-style word BLONDE does little to change how the marks sound. |
| appearance | Similar | Applicant’s mark incorporates the entire cited mark TIME TRAVELER and merely adds the highly descriptive word BLONDE. |
| meaning | Similar | Both marks convey the same time-traveler idea; BLONDE simply names a style of beer. |
| commercial impression | Similar | Consumers would likely see TIME TRAVELER BLONDE as a blonde-ale variant from the same source as TIME TRAVELER beer. |
The Board found the marks highly similar overall because the shared wording TIME TRAVELER dominates both and the added disclaimed word BLONDE names a beer style rather than distinguishing source.
du Pont factors that bore on the outcome
| # | Factor | Weight | What the Board found |
|---|---|---|---|
| 1 | Similarity of the marks | Dispositive — Favored Refusal | Comparing TIME TRAVELER BLONDE to TIME TRAVELER in their entireties, the Board found the disclaimed term BLONDE highly descriptive or generic for a type of beer and thus lacking source-indicating function, so the commercial impression of Applicant’s mark is merely that it is the “Blonde” brew of TIME TRAVELER brand beers. |
| 2 | Relatedness of the goods or services | Dispositive — Favored Refusal | The Board found the goods identical in part because “beer” appears in both identifications, and found the cited registration’s additional goods “ale” and “lager” to be types of beer based on an unrebutted Wikipedia entry describing ale as a beer made by warm fermentation.. |
| 3 | Similarity of trade channels | Dispositive — Favored Refusal | Because the goods are at least in-part legally identical, the Board presumed identical trade channels and classes of purchasers under Viterra, Yawata, and American Lebanese Syrian, identifying liquor stores, grocery/convenience store beer sections, bars and restaurants as trade channels, and ordinary consumers as the class of purchasers.. |
| 4 | Conditions of sale and buyer sophistication | Dispositive — Favored Refusal | The Board took judicial notice that beer is relatively inexpensive, subject to impulse purchase, and often ordered orally, and because the identification contains no price-point limitation, treated the goods as including inexpensive beer purchased on impulse by ordinary consumers held to a lesser standard of purchasing care.. |
| 10 | Market interface between applicant and owner of a prior mark | Favored Refusal | Applicant submitted a Short Form Agreement (intended for the public PTO record) and a Long Form Agreement (submitted after the Short Form failed to persuade the Examining Attorney, and which necessarily became part of the public record once filed during examination). |
Why this decision is significant
The leading precedential authority on when a consent agreement fails to overcome a Section 2(d) refusal: despite du Pont’s teaching that consents are entitled to great weight, the Board gave this one little weight because it permitted overlapping use in the same territory with inadequate confusion-avoidance provisions. Routinely cited in consent-agreement practice.
Research significance is Trademark Valet's editorial rating of how useful a decision is to practitioners. It is not a statement of precedential weight — that is the separate Precedential field, which comes from the Board.
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The original record
Read the opinion and every filing on the Board's own docket. The summary above is our paraphrase, not a quotation from the opinion. The opinion is the authority.
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