Is JUMBO JUICE for Beer Likely to Cause Confusion with JAMBA JUICE for Smoothies?

Trademark applications for beers are some of the most common trademark applications these days. Almost every day multiple applications are filed for the delicious beverage. July 30th was no different. On that day, a brewery in Washington filed a federal trademark application for JUMBO JUICE in as it relates to a variety of beers in Class 032.

Does JUMBO JUICE remind you of a particular smoothie company? Jamba Juice, maybe? Is the similarity enough to cause a likelihood of confusion between the marks? If so, the U.S. Patent and Trademark Office (USPTO) could refuse to register JUMBO JUICE due to Jamba Juice Company's pre-existing registration for JAMBA JUICE in Class 032 for "fruit and vegetable juices, drinks and smoothies[.]"

When determining whether two marks are similar enough to result in a likelihood of confusion, the USPTO will examine the several factors set forth in In re E.I. du Pont Nemours & Co., 476 F.2d 1357, 177 USPQ 563 (C.C.P.A. 1973). Although that case set forth multiple factors, the two key factors are (1) the similarity or dissimilarity of the marks in their entireties as to appearance, sound, connotation and commercial impression and (2) the relatedness of the goods or services as described in the application and registration(s).

In this case, there's no question that JUMBO JUICE and JAMBA JUICE are very similar in their appearance. The only difference between the marks is one letter. Arguments can be made that the sound and commercial impression are different, but I think this factor would weigh in favor of finding a likelihood of confusion.

However, the key factor in this analysis will be the relatedness of beers and smoothies. In determining whether particular goods or services are related, "[i]t is sufficient that the goods and/or services of the applicant and the registrant are related in some manner or that the conditions surrounding their marketing are such that they are likely to be encountered by the same persons under circumstances that, because of the marks used in connection therewith, would lead to the mistaken belief that they originate from the same source." TMEP 1207.01(a)(i).

What do you think? Would you be confused as to whether JUMBO JUICE is a beer sold by Jamba Juice? 

I don't think so. It's not often you see beer and smoothies marketed together or sold by the same company. These are two distinct types of goods marketed in different ways and under different circumstances. 

While the USPTO has found beer and wine related enough to support a likelihood of confusion (partly because they are both sold in liquor stores), I am not aware of the USPTO drawing the same line between smoothies and beer. Thus, I do not think the USPTO will cite Jamba Juice's registration against JUMBO JUICE.

Jamba Juice Attempts to Register BANANA BERRY SMOOTHIE As Trademark for Smoothies

In a somewhat bold move, the Jamba Juice Company filed a federal trademark application for BANANA BERRY SMOOTHIE on July 20th.

Jamba Juice filed the application in Class 032 for "Fruit juices and fruit drinks; vegetable juices and vegetable drinks; fruit and vegetable smoothies." The application lists a first use date of July 4, 2004.

Typically, such a mark would be considered merely descriptive because it describes "an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services." TMEP 1209.01(b). Merely descriptive words and terms usually cannot be registered as trademarks (on the Principal Register at least). 15 U.S.C. 1052(e)(1).

Jamba Juice, however, is claiming that BANANA BERRY SMOOTHIE has acquired distinctiveness. If a merely descriptive mark acquires distinctiveness, it can be registered as a trademark. What does it mean to acquire distinctiveness? It means the mark, "through usage by one producer with reference to his product, acquire[s] a special significance so that to the consuming public the word has come to mean that the product is produced by that particular manufacturer." See TMEP 1212. 

In other words, Jamba Juice is claiming that when a consumer sees the mark BANANA BERRY SMOOTHIE, it associates the smoothie with Jamba Juice. This is a difficult claim to make, and the burden will be on Jamba Juice to make it. If the Examining Attorney at the Trademark Office does not accept Jamba Juice's 2(f) (aka acquired distinctiveness) claim on its face, Jamba Juice will need to submit evidence showing consumers associate the term with Jamba Juice. In general, "more evidence is required where a mark is so highly descriptive that purchasers seeing the matter in relation to the named goods or services would be less likely to believe that it indicates source in any one party." TMEP 1212.01.

In other words, Jamba Juice may have a difficult battle in front of it. But it is using a large and very skilled law firm, so it will be interesting to see how this one turns out. If Jamba Juice is successful in registering this term, it will obtain exclusive rights and can [attempt] to prevent other businesses from using anything similar to BANANA BERRY SMOOTHIE in relation to smoothies (which will make for interesting and challenging enforcement issues).