TTAB Test: Is SINFUL ZINFANDEL Confusable with ZINFUL for Wine?

The USPTO refused registration of the mark SINFUL ZINFANDEL for "wine created primarily from Zinfandel grapes" [ZINFANDEL disclaimed], finding it likely to cause confusion with the registered mark ZINFUL for "Distilled spirits; Wines." On appeal, applicant contended that confusion is unlikey because wine consumers would "research and spend time on offerings made by the respective parties." How do you think this came out? In re Peter Wood, Geoffrey Dean-Smith, and Tasha Mudd, Serial No. 87022288 (October 25, 2017) [not precedential] (Opinion by Judge Cynthia C. Lynch).

As to the goods, registrant's "wines" encompass all types of wine, including applicant's zinfandel, and so the involved goods are identical in part. The Board must presume that those overlapping goods move in the same normal channels of trade to the same classes of customers. These factors weighed heavily in favor a finding of likely confusion.

As to the marks, the word SINFUL dominates applicant's mark: it is the first word in the mark and thus the most likely to be remembered, and the word ZINFANDEL has been disclaimed. The combination of the two words does not significantly impact the overall impression of the mark, "although ZINFANDEL does make Applicant's mark look and sound more similar to Registrant's mark."

Applicant's dominant term SINFUL rhymes with registrant's mark ZINFUL and the two words look similar. Customers will pronounce SINFUL and ZINFUL very similarly.

As to meaning and commercial impression, the word ZINFUL, when used on zinfandel wine, brings to mind zinfandel "and also evokes something 'sinful' or perhaps 'sinfully' good because of ZINFUL's rhyme with and similarity to the word 'sinful.'"

The Board therefore found that the resemblance in sound, appearance, connotation, and commercial impression renders the marks, as a whole, similar.

Applicant's contention regarding the sophistication of purchasers lacked supporting evidence. In any case, the identifications of goods in the application and the cited registration contain no limitations as to types of wine. Some wines are expensive while others are not. In its analysis, the Board must consider all potential purchasers of the goods, and it cannot infer that all are sophisticated.

In sum, the Board found confusion likely and it affirmed the Section 2(d) refusal.

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TTABlog comment: Would ZINFUL SINFANDEL be confusable with SINFUL ZINFANDEL? After a few glasses, definitely.

Text Copyright John L. Welch 2017.