After a few of either, the likelihood of confusion may no doubt increase. But in a recent sober judgment, the U.S. Trademark Office ruled that REUBEN’S BREWS for beer is not likely to be confused with RUBENS for wine.
The Office recognized that it had found on “a number of occasions” that beer and wine are related but that it had “in the recent past taken inconsistent positions when it comes to likelihood of confusion between marks for beer and wine.” Rather than take the opportunity to declare once and for all that beer and wine should always be considered to be highly related (or not) in the likelihood of confusion analysis, unfortunately the best it could do was vaguely conclude that there is “some degree of relationship” between the goods. On the other hand, the Office acknowledged the existence of nine pairs of nearly identical registered marks for beer and wine, demonstrating how often examiners allowed such simultaneous registrations and suggesting that the goods were not very closely related at all.
Of course, even if beer and wine were always considered highly related (or not), many other factors are to be considered in any particular case. In the REUBEN’S/RUBENS case, for example, the marks were not identical and each had its unique design and stylization. Thus, while the relatedness of the goods alone should never be the determining factor in the likelihood of confusion analysis, it would still be helpful for the Office to speak with more definitiveness on the relationship between beer and wine rather than continue to rely on a case-by-case basis depending on the evidence any particular litigant is able to muster.