If you've been on Lower Broadway in Nashville recently (or even if you've been simply listening to radio ads associated with new honky tonk venues), you've likely noticed your share of country music celebrities who have opened up new restaurant and bar venues: Jason Aldean, Luke Bryan, Florida Georgia Line, Blake Shelton, Dierks Bentley, and John Rich are among those who have staked out territory in a thriving "It" city tourist mecca. And if you're in the restaurant entertainment business, you may be considering your current brand or a total rebranding as a trademark.
But what if your restaurant has a name that is similar to one of the brews on tap at the bar? And what if you just happen not to have ownership rights in the name of the beer?
Good news: You are not out of luck in terms of a federal trademark or service mark application. In fact, just because another registered mark is exactly like yours doesn't mean that you should go looking for another name. It all comes down to a legal concept known as similarity of goods and/or services.
The name on the marquee outside may be the exact same one as as one of the tap handles or bottled beers in the cooler, not to mention one of the bottles of wine available. But consider a Federal Circuit Court case initiated by Coors Brewing Company and decided back in 2003 regarding the mark BLUE MOON. Yes - it may be one of your favorite fall pours, but it can also be used in association with restaurant services.
Coors applied to register the name as a brand of beer that readers may be familiar with. The Court of Appeals, Federal Circuit, reversed the Trademark Trial and Appeal Board to overcome a preliminary refusal to register and to allow the beer mark to move forward. The hitch from the Board below was "Likelihood of Confusion". If "Blue Moon" for restaurant services can be confused with "Blue Moon" for beer, the two cannot both be registered. The two underlying factors are "Similarity of the marks" and the aforementioned "Similarity of goods and/or services".
As we all know, many restaurants also serve alcoholic beverages. But this alone does not mean "similar goods/services". Instead, the court held that something more than just being food and brew alongside each other is needed to establish similarity.
So whether you're enjoying food or brew, look for BLUE MOON, as both of the marks remain registered. And if you're considering applying for a trademark in the restaurant entertainment industry, don't worry if you happen to like a name already in use for an alcoholic beverage.