Victory Beer vs. Victory Whiskey

Will whiskey buyers, upon seeing a whiskey that has the same name as a beer brand, be confused into thinking that the whiskey is being produced by the same company that produces the beer?  That is probably the question being asked by Sons of Liberty Spirits right about now, after its trademark application for the term VICTORY was opposed by Victory Brewing Company. Unfortunately for Sons of Liberty, it is a question that is likely to be answered in the affirmative by the Trademark Trial and Appeal Board.

Sons of Liberty Spirits is a Rhode Island craft distillery. It has obtained trademark registrations for other military inspired names, such as BATTLE CRY, UPRISING, and LOYAL 9. Its application for the mark VICTORY was approved by the Trademark Office and published for opposition on December 17, 2013. On January 16, 2014, Victory Brewing Company filed a Notice of Opposition against the application. See: http://ttabvue.uspto.gov/ttabvue/v?pno=91214516&pty=OPP

Victory Brewing Company is a Pennsylvania based craft brewery. It is one of the larger craft breweries in the US, with distribution across 30 states. It has trademark registrations for a number of marks featuring the "Victory" term, including: VICTORY; VICTORY BREWING COMPANY; A VICTORY FOR YOUR TASTE; and VICTORY HELIOS ALE.

Sons of Liberty (and plenty of others) would likely argue that consumers will not mistakenly believe that beer and liquor products (or wine) are sold by the same company, even if they are offered under the same brand name, because the respective alcohol products are usually sold by different types of companies (i.e. breweries, distilleries and wineries). However, the TTAB has generally taken the opposite view, provided that the opposing party has introduced some evidence showing that the respective alcohol products are related in some way (e.g. records of third party registrations covering both types of products). Representative cases include:

• BATTLEFIELD BLUE 'RITA for prepared alcohol cocktails refused based on BATTLEFIELD for beer. (TTAB upheld refusal). See: http://www.thettablog.blogspot.com/2013/07/test-your-ttab-judge-ability-are.html

• UPSLOPE BREWING COMPANY for beer refused based on UPSLOPE for wine (TTAB upheld refusal). See: http://thettablog.blogspot.com/2011/02/test-your-ttab-judge-ability-two-cases.html

• EARTHQUAKE HIGH GRAVITY LAGER & Design for high gravity lager refused based on EARTHQUAKE for wine. (TTAB upheld refusal). See: http://thettablog.blogspot.com/2011/02/test-your-ttab-judge-ability-two-cases.html

• ATELIER for tequila refused based on ATELIER WINERY for wine. (TTAB upheld refusal). See: http://thettablog.blogspot.com/2012/12/atelier-for-tequila-confusable-with.html

While the TTAB maintains that there is no per se rule that different types of alcoholic products are related, as one prominent trademark attorney has noted, "it just works out that way." (https://twitter.com/TTABlog/status/259322993669451778)