Brooklyn Brewery Corporation v. Brooklyn Brew Shop, LLC, No. 20-2277 (Fed. Cir. 2021)
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For more than 30 years, Brewery has used the marks BROOKLYN and BROOKLYN BREWERY in connection with the advertising, promotion, and sale of Brewery’s beer and beer-related merchandise. Brewery owns Registration No. 3,186,503 for BROOKLYN BREWERY for beer in Class 32,1 registered in 2006. Brewery petitioned to cancel BBS’s subsequent registration of the mark “BROOKLYN BREW SHOP,” in standard characters, for goods identified as “Beer making kit[s]” in Class 32 and opposed BBS’s application to register a stylized version of the same mark for beer-making kits in Class 32 and sanitizing preparations for household use in Class 5.
The Federal Circuit affirmed the Trademark Trial and Appeal Board’s denial of Brewery’s petition for cancellation. The court dismissed the appeal regarding the Class 5 goods for lack of standing. The court vacated in part; the Board erred by not entering judgment in favor of Brewery on the Class 32 goods deleted from BBS’s application. As to the remaining goods in Class 32 (beer-making kits), the court affirmed the Board’s dismissal of the claim that, under Section 2(d), the mark is likely to cause confusion. The court vacated with respect to the descriptiveness issue under Section 2(e)(1); the Board erred by not reaching Brewery’s claim that the applied-for mark lacked acquired distinctiveness under Section 2(f) as to the beer-making kits. The court affirmed the Board’s refusal to consider geographic descriptiveness..
The court issued a subsequent related opinion or order on January 18, 2022.
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