The Trademark Board Cancels the Trademark Registration for HOPNOTIC Beer

by Norris McLaughlin & Marcus, P.A.

In another disappointment to the beer brewing industry, the Trademark Trial and Appeal Board canceled a trademark registration for the mark HOPNOTIC for beer on the basis that it is confusingly similar to liquor brand HPNOTIQ.  Heaven Hill Distilleries, Inc. — which owns the HPNOTIQ mark and boasts several trademark registrations for HPNOTIQ, including registrations for alcoholic beverages, liquor and other goods — brought an action to cancel the HOPNOTIC mark owned by Cricket Hill Brewing Company, Inc., of New Jersey.

Even though Cricket Hill has sold HOPNOTIC since 2004, the Board found that Heaven Hill had priority because its application for HPNOTIQ was filed earlier, in 2002, so Heaven Hill was able to rely on this date as its first use.

In evaluating the likelihood of confusion, the Board recognized that Cricket Hill’s goods are “beer,” which Cricket Hill described as a specialized craft beer known as India Pale Ale; and Heaven Hill’s goods are “liquor.” However, the test is not whether consumers will be likely to confuse the goods themselves, but whether they will be likely to confuse the source of the goods.  It is not necessary that the goods be identical or even competitive; rather, it is sufficient that the goods are related in some way, or that they are marketed in such a way as to be encountered by the same consumers under circumstances that would give rise to the mistaken belief that they originate from the same source.  Beer has been found to be sufficiently related to distilled spirits, despite the differences in production methods, distribution, and marketing.

In assessing the similarity of the two marks themselves, the Board noted that they are nearly identical, despite the fact that Cricket Hill’s mark begins with “HOP,” referring to “hops” and the distinctive taste associated with “hoppy” beer.  It concluded that consumers were not likely to view the products as originating from separate sources, but rather will view HOPNOTIC as a variation of the HPNOTIQ mark.  The Board added that, in a loud atmosphere such as a bar, a waiter may not be able to distinguish the two marks, which are very similar in pronunciation.  Accordingly, the Board found that the HOPNOTIC mark was likely to cause confusion with the HPNOTIQ mark, and cancelled the registration.  Do you agree with this result? 

As previously reported, several recent rejections by the Board have highlighted the difficulty craft brewers and the industry in general are facing with branding and labeling new products.  The rise in the number of craft breweries in recent years has resulted in a surge of disputes over creative trade names.  Are we running out of catchy creative names for craft brews?  This is a reminder that careful review of existing trademarks (whether or not registred), including not only names of beers but also names of wine and liquor products, is necessary before committing to a name.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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