Brewdog are likely to be raising a Brewdog Elvis Juice filled pint glass to the Appeal Officer who decidedthat they couldregister a trade mark for Brewdog Elvis Juice. So Elvis or at least Brewdog Elvis is back in the building - or a Brewdog craft beer pub near you!
In my blog last year I predicted that the initial decision refusing to register Elvis Juice and Brewdog Elvis Juice as trade marks would be appealed. It was decided last year that the average consumer wouldconsider or recall the Elvis name as the most prominent or at least equally prominent part of the Elvis Juice or BrewDog Elvis Juice names and so assume that the product came from the Elvis Presley estate or was approved by them.
Despite the fact that the Appeal Officer himself admitted that he would think of Elvis Presley when he saw the name Elvis as part of a product or brand name, the appeal hinged on the decision that the initial hearing officer was wrong to conclude that the average beer consumer who saw the word Elvis as part of Brewdog ElvisJuicewould automatically think of Elvis Presley. Elvis was of only average distinctiveness and could instead refer to Elvis Costello. Such a decision would have required evidence of confusion rather than a judicial assumption based on the fame of the Elvis Presley name.
The fame of Elvis was enough to lead to confusion with Elvis Juice and so the rejection of the Elvis Juice trade mark application was upheld. So far1-0 to the King.
However, it was wrong to have treated Brewdog Elvis Juice as a composite mark of Brewdog and Elvis Juice and when assessing the risk of confusion the Brewdog Elvis Juice mark had to be considered as a whole. Brewdog may be delighted with the reference to Brewdog being at least, if not more, distinctive than Elvis. It was decided that the common element of Elvis was not enough to make consumers think that there is a link between Elvis and Brewdog Elvis Juice.
Whilst a mixed result and a victory for both parties, it does seem that Brewdog will be happier with the result and welcoming Brewdog Elvis Juice with open arms and mouths into their pubs. As I type this blog a queue is forming for the new Brewdog bar in Festival Square, Edinburghand perhaps I should conduct a consumer survey about confusion... or sample the product!