[00:00:00] Speaker 01:
Our next case is number 21, 23, 27, in Ray One Love Brewery, LLC.

[00:00:09] Speaker 01:
Okay, Mr. Kane.

[00:00:14] Speaker 03:
Suffocating back there.

[00:00:17] Speaker 03:
May it please the court.

[00:00:20] Speaker 03:
My name is Kevin Kane.

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I'm here representing the applicant appellant, One Love Brewery.

[00:00:28] Speaker 03:
a microbrewery and restaurant located in Lincoln, New Hampshire that had applied for the trademark Drink the East, which it has used continuously since January 1, 2015.

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Its registration was denied and found to be likely confused by a reasonable person

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with the registered mark Drink the West, which is held by Black Tooth Brewing Company in Cheyenne, Wyoming.

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The board below found that there were some similarities between the applicant and the registrant in that they were both microbreweries, they were both restaurants, they both sold merchandise, t-shirts and mugs and things of that nature.

[00:01:20] Speaker 03:
with their Trademarks on there and they did it both at their restaurant in their stores and on their websites and None of those facts are really in dispute the board below found Or acknowledged that there is no evidence whatsoever of any actual confusion in the marketplace But they discounted that completely I am confused

[00:01:47] Speaker 03:
Quite frankly, in an ex parte proceeding such as this, how I was supposed to prove a negative, other than to say that there is no evidence of actual confusion in the marketplace.

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I believe that the confusion or the decision here was wrong.

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And I would suggest that the real focus here is on who is an ordinary person, number one.

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And number two, what's reasonable?

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And neither of those things are DuPont factors, but they should be.

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Because in this case, someone is going to look at a mark, and it's going to say, drink the East.

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It's going to be on a t-shirt that's sold by my client in a microbrewery in New Hampshire.

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No reasonable person applying common sense is going to confuse that with drink the West.

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which is associated with a microbrewery in Cheyenne, Wyoming.

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No one.

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So reasonable person and common sense need to be applied to this analysis as much as any DuPont factor.

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And the case law, the Citibank case in particular, has found that you could satisfy any number of DuPont factors and they don't carry the day.

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You still have to step back.

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Why wouldn't a reasonable person who happened to have been a patron at the Wyoming, in the Wyoming locale, visiting New Hampshire, see Drink the East, think, oh, it's this Wyoming company, looks like is going national.

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with maybe a variety of regional affiliates.

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Because the name of the Wyoming company is called Black Tooth Brewing Company.

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It's on their sign.

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It's on all of their signs.

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It's on the mugs.

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It's on the t-shirts.

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It's on everything.

[00:04:04] Speaker 04:
But it's not part of their registered mark.

[00:04:06] Speaker 03:
Well, I think they actually have other registered marks for style.

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Fair enough, it's a word mark, it's a word mark.

[00:04:15] Speaker 03:
Well, I would say this, that this idea that because you have a cardinal direction in your trademark.

[00:04:25] Speaker 04:
No, but it's not just because of that, it's because of the, and I know I don't mean to use this, I don't think in the technical sense, it's somewhat a fanciful expression.

[00:04:36] Speaker 04:
It's like the Skittles expression, taste the rainbow.

[00:04:44] Speaker 03:
Well, I think it's obvious to a reasonable person that drink the West relates to Wyoming, the West, the Indians, the cowboys.

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But somebody who uses the somewhat fanciful expression, taste the West in Wyoming,

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a reasonable person at least, could think that when you see it in New Hampshire with Taste the East.

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Drink the East.

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Drink the East.

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Drink the East has decided to use this fanciful expression locality by locality.

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This is where I guess I get to say I respectfully disagree and strongly.

[00:05:30] Speaker 02:
But why?

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I mean, just because they're two different

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microbreweries?

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I mean, you know, there's all this kind of, you know, even the big name brands sometimes present themselves as microbreweries.

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You could, even if they've identified as this is a specific name microbrewery in the West and a specific name microbrewery in the East, you could still think, well, they're really just owned by the same big company and they're repeating the taste of the East.

[00:06:01] Speaker 02:
or drink the East, drink the West, the taste of the rainbow has now confused me.

[00:06:05] Speaker 02:
Sorry about that.

[00:06:06] Speaker 04:
No, it's okay.

[00:06:07] Speaker 04:
I knew I heard an echo of this kind of expression.

[00:06:09] Speaker 02:
Yeah, exactly.

[00:06:10] Speaker 02:
But I mean, and think, well, yeah, they're going to start expanding nationally.

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We'll see taste of the West.

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We're going to see, you know, taste, or drink, sorry, drink, drink, drink the South, drink Canada.

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I mean, I mean, I don't understand how you can say that's unreasonable.

[00:06:27] Speaker 02:
I mean, you might think it might be more reasonable to have your view, but it certainly doesn't seem unreasonable to confuse those two terms.

[00:06:38] Speaker 03:
Well, let's go to the real analysis here, though, is the likelihood of confusion, right?

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The likelihood of confusion.

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And is there going to be a likelihood of confusion?

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I think the reasonable person says no.

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I think you're reframing it.

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And drink the West for a Wyoming-based microbrewery to the reasonable person obviously means cowboys and Indians drink the West, come out here and drink our flavor.

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And drink the East is clearly related to drinking in New Hampshire, New England, that type of thing.

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Just like the old bumper stickers, ski the East.

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You don't think about going to Vale.

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There used to be bumper stickers out in Colorado.

[00:07:26] Speaker 01:
But I'm not sure that helps you because it suggests that the distributor might be tailoring the second part of the mark to suit the geography in which the product's being distributed.

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This is not a unique case in this sense and we have downtown or uptown or

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have been found by the board to create a possibility of likelihood of confusion.

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And manpower and womanpower have been held to create a likelihood of confusion.

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The fact that they're opposites doesn't really carry the day for you.

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And the very fact that it's a different geography suggests that the purveyor of the product might be tailoring it to the geography.

[00:08:19] Speaker 03:
But we have a record here before us.

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And within this record, we don't have to guess about whether someone's going national or not national.

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We know who these people are.

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And the consumer doesn't necessarily know that.

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But the consumer going to my client, that's in New Hampshire,

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is never, on this record, ever going to be confused with Drake the West.

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It's just not a reasonable assumption, I would suggest.

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It's not reasonably foreseeable.

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And for that reason, I would say that the decision of the board should be overturned, and it should be sent back, at least for publication.

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And then if this trademark holder wants to object, then maybe we come back here again.

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But at this stage, on this record, I don't believe it was appropriate to deny the application.

[00:09:22] Speaker 01:
Thank you very much.

[00:09:25] Speaker 01:
Okay.

[00:09:26] Speaker 01:
Thank you.

[00:09:26] Speaker 01:
Let's see.

[00:09:29] Speaker 01:
Ms.

[00:09:29] Speaker 01:
Walker.

[00:09:32] Speaker 00:
May it please the court.

[00:09:33] Speaker 00:
The trademark trial appeal board correctly concluded that appellants drink the East mark as likely to be confused if the previously registered drink the West mark.

[00:09:41] Speaker 00:
The board carefully considered the marks and found their similarities in considering the marks as a whole within favor of likelihood of confusion.

[00:09:53] Speaker 00:
I want to address a point that my friend made several times here.

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My friend said that we are talking about breweries in distinct geographic areas.

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And the board considered that issue and said, correctly, based on this court's precedent, that we can't consider those, that the board couldn't consider those geographic restrictions absent a restriction in the goods ID themselves, right?

[00:10:16] Speaker 00:
What we have here are clothing items and hats.

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unrestricted in both the registration and the application.

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There's no restriction, for example, that these are goods sold by a microbrewery in Wyoming versus goods sold by a microbrewery in New Hampshire.

[00:10:34] Speaker 00:
We do have the identity of the registrant and the applicant, but as Judge Dyke identified,

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Consumers are not aware of the owner, right?

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That the idea here is that there's a test for if the consumer were to see the mark without knowing the owner, would they assume that these two marks come from the same, often anonymous source?

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And the board did, it made a very clear factual finding here that there was a likelihood of confusion.

[00:11:03] Speaker 00:
If the court has no further questions, I would ask that this court affirm the board.

[00:11:15] Speaker 01:
Mr. Kane, you have additional.

[00:11:18] Speaker 01:
I'll wait a moment.

[00:11:19] Speaker 01:
Okay.

[00:11:19] Speaker 01:
Thank you very much.

[00:11:20] Speaker 01:
Thank both councils.

[00:11:20] Speaker 01:
Paces submitted.