Sonic Drive-In opposed Dogfish Head Craft Brewery Inc.’s federal trademark application to register a “prohibition-inspired cocktail” branded “Sonic Archeology.” The signature cocktail made from Dogfish Head spirits is sold in its branded restaurants.

“Sonic” is registered as a federal trademark for bar services, and at least two Sonic locations serve beer and wine. The legal issue is whether the public might mistakenly believe that the Dogfish Head cocktail came from Sonic or was somehow sponsored or endorsed by Sonic. The TTAB will have to determine whether the addition of the term “archeology” changes the commercial impression enough that people would not associate the combined term with Sonic and its fast food chain. Would people think “Sonic” and “Sonic Archaeology” came from the same company?

In another recent case, the TTAB ruled that consumers would not likely confuse an upscale Manhattan eatery called The Cannibal Beer & Butcher (with beer sold under the same Cannibal name) with craft brewer Iron Hill Brewery LLC’s beer and allowed it to register the Cannibal trademark for beer despite the objection by the New York City restaurant. There had to be “something more” that made confusion likely than there mere fact that there was a general relationship between restaurants and alcohol because restaurants tend to serve alcohol. This is consistent with the TTAB’s decision to allow Coors to register Blue Moon as a trademark for beer over the objection of a restaurant with the same name.

In the Cannibal case, the judge stated:

“In light of the large number of restaurants in the United States, the facts that a single mark is sometimes used [to] identify restaurant services and beer, that some restaurants are associated with breweries, and that restaurants may sell beer are not sufficient to establish a relationship between restaurant services in general and beer . . . Not only would a senior user of a mark for restaurant services have prior rights for that mark for beer, but the senior user of a mark for restaurant services could have prior rights for that mark for other food, beverages and condiments and a variety of broadly described promotional items”

In re Iron Hill Brewery, LLC, case number 86682532, before the Trademark Trial and Appeal Board.

I suspect this case will be resolved on the same logic and Dogfish Head will be able to register its mark.