*1 THIS DISPOSITION IS NOT CITABLE AS PRECEDENT OF THE T.T.A.B.
Trademark Trial and Appeal Board
Patent and Trademark Office (P.T.O.)
ALASKAN BREWING & BOTTLING CO.
JOHN MASON ONEY
Opposition No. 86,988
to application Serial No. 74/121,055 filed on December 6, 1990
June 28, 1996
William E. Mouzavires, Esq. for opposer.
John Mason Oney, pro se.
Before Rice, Simms, and Cissel
Administrative Trademark Judges.
Administrative Trademark Judge:
An intent-to-use application has been filed by John Mason Oney to register the mark shown below (in reduced size)
for glacier water. [FN1]
Registration has been opposed by Alaskan Brewing & Bottling Co., which asserts prior use and registration of the mark ALASKAN for beer and ale, [FN2] the mark ALASKAN PALE ALE and design, as shown below (in reduced size),
for ale, [FN3] and the mark ALASKAN AMBER BEER and design, as shown below (in reduced size),
for beer. [FN4] In addition, opposer has pleaded likelihood of confusion.
Applicant, in his answer to the notice of opposition, denied the salient allegations contained therein. It is basically the position of applicant, as asserted in his answer, that there is no likelihood of confusion because of (1) the differences in the goods of the parties, and (2) the geographic significance of the term ALASKAN.
The record consists of the pleadings; the file of applicant's subject application; status and title copies of opposer's four registrations; and, in opposer's behalf, the testimony, upon written questions, of Geoffrey L. Larson, owner of opposer. Only opposer has filed a brief on the case. Neither party requested an oral hearing.
Since the end of December, 1986, opposer has continuously been engaged in the business of producing and marketing beer under the mark ALASKAN. The mark is used by applying it to, inter alia, labels and packaging for the beer, shipping containers, table tents, and delivery trucks.
Opposer's beer products bearing its marks are distributed throughout the United States. They are sold directly to the public at the store in opposer's brewery; to retailers, such as bars, restaurants, grocery stores, and liquor stores, which then sell to the public; to wholesalers, which then sell to the retailers; and to foreign importers, which then sell to wholesalers in their countries.
Opposer's ALASKAN beer products have been advertised and promoted via, inter alia, television, magazines, radio, newspapers, flyers, leaflets, brochures, posters, and appearances at trade shows and festivals. Opposer's total expenditures for these activities have exceeded $1,000,000. In addition, opposer markets collateral products, namely, apparel, imprinted with its mark. Opposer's sales of its ALASKAN products have risen steadily each year since their inception. Sales of these products for the 12 months preceding April, 1995, amounted to $2,747,517. Opposer's ALASKAN beer products have won numerous awards for excellence, and have been featured on several television programs.
*2 Opposer has also offered testimony to the effect that beer and ale products are marketed and sold through the same trade channels as bottled water products, and that some of the retailers to whom opposer sells its ALASKAN beer products also carry bottled water.
The evidence of record clearly establishes opposer's ownership of subsisting registrations of its pleaded marks, as well as opposer's prior use of those marks. Therefore, the question to be determined herein is whether the contemporaneous use of the respective marks of the parties on their respective goods would be likely to cause confusion.
Turning first to the goods of the parties, both are beverage products which may be sold in the same retail stores to the general consuming public. At the same time, beer and ale, on the one hand, and glacier water, on the other, are specifically different products with specifically different uses, and there is no evidence that these differing types of products ever emanate from a single source, much less that consumers would expect them to.
Turning to the marks, opposer argues that applicant's mark is a long slogan which is not easily remembered except for the first word, ALASKAN, and that given the strength of opposer's ALASKAN mark for beer and ale products, and the fact that applicant's mark features the identical term ALASKAN and is used on related products, a likelihood of confusion exists. We cannot agree.
We do not doubt that opposer has built up a considerable amount of goodwill in its mark as applied to beer and ale. However, applicant's mark is not used on beer and ale, or on any other alcoholic product. Moreover, the term ALASKAN has obvious geographic significance as applied to goods from Alaska. [FN5] Further, applicant's mark is not just the word ALASKAN. As used in applicant's mark, the term is likely to be perceived not alone (as opposer would have it), but rather as part of the phrase ALASKAN GLACIER WATER (because those three words appear in larger, darker letters than the remainder of the mark), followed by a slogan, i.e., WE CAN'T GIVE YOU OUR AIR BUT WE CAN GIVE YOU OUR WATER, which reinforces the geographic significance of the term ALASKAN. Considering applicant's mark in its entirety, as we must in determining likelihood of confusion, we find that purchasers who encounter applicant's mark on glacier water are likely to regard the term ALASKAN as indicating the geographic origin of applicant's goods, not as indicating that the product emanates from opposer.
For the foregoing reasons, we conclude that there is not, in this case, a likelihood of confusion.
Decision: The opposition is dismissed.
R. L. Simms
R. F. Cissel
Judges, Trademark Trial and Appeal Board
FN1. Application Serial No. 74/121,055, filed December 6, 1990 under the provisions of Section 1(b) of the Trademark Act of 1946, 15 U.S.C. 1051(b), based on applicant's allegation of a bona fide intent to use the mark in commerce. Applicant has disclaimed the words ALASKAN GLACIER WATER apart from the mark as shown.
FN2. Registration No. 1,594,763, issued on the Supplemental Register on May 1, 1990 from an application filed on the Principal Register on October 19, 1989 and amended to the Supplemental Register on January 30, 1990, claiming first use on December 30, 1986, and first use in commerce on January 3, 1987, affidavit Sec. 8 accepted. Opposer also pleaded ownership of an application to register the same mark, for the same goods, on the Principal Register. That application has since matured into Registration No. 1,828,482, issued March 29, 1994 under the provisions of Section 2(f) of the Act from an application filed January 29, 1992, claiming first use on December 30, 1986, and first use in commerce on January 3, 1987.
FN3. Registration No. 1,608,438, issued July 31, 1990 from an application filed November 24, 1989, claiming first use on September 1, 1988 and first use in commerce on October 15, 1988, affidavit Sec. 8 accepted, affidavit Sec. 15 received. The registration includes a disclaimer of the words ALASKAN PALE ALE apart from the mark as shown, and a statement that the lining in the mark is a feature of the mark and is not intended to represent color.
FN4. Registration No. 1,647,000, issued June 4, 1991 from an applicantion filed January 17, 1990, claiming first use on December 30, 1986, and first use in commerce on January 3, 1987. The registration includes a disclaimer of the words ALASKAN AMBER BEER apart from the mark as shown, and a statement that the lining and stippling in the drawing is a feature of the mark and is not intended to indicate color.
FN5. It is for this reason that opposer's first registration of the mark ALASKAN (alone) issued on the Supplemental Register, and opposer's second registration thereof issued on the Principal Register under the provisions of Section 2(f) of the Act.
1996 WL 33141622 (Trademark Tr. & App. Bd.)
END OF DOCUMENT