## Facts

- Beer Nuts, Inc. marketed sweetened and salted nuts under the federally registered trademark BEER NUTS®, registered in 1955 and later incontestable.
- Clover Club Foods Co. previously distributed Beer Nuts products from 1959 to 1974.
- After the distributorship ended, Clover Club decided in 1977 to market similar sweetened and salted peanuts under the name BREW NUTS.
- Clover Club’s product packaging included the words “BREW NUTS,” a drawing of an overflowing stein filled with peanuts, and a smaller CLOVER CLUB house mark.
- Both parties sold similar low-cost peanut products in similar-size cellophane packages through similar retail channels.
- The case returned to the district court on remand after the court of appeals directed that likelihood of confusion be assessed under marketplace conditions rather than by a side-by-side package comparison.
- On remand, the district court reviewed the prior trial record, party submissions, and additional argument, then re-decided the likelihood-of-confusion issue.

## Issues

1. Whether Clover Club’s use of “BREW NUTS” and its beer-stein packaging for sweetened and salted peanuts was likely to cause consumer confusion with Beer Nuts’ registered “BEER NUTS” mark under Lanham Act § 32(1), 15 U.S.C. § 1114(1).
2. Whether, when evaluated from the standpoint of ordinary purchasers in normal market conditions, the similarities in theme and goods outweighed differences in wording, trade dress, and source identification.

## Decision

- The court held that Beer Nuts failed to prove a likelihood of confusion between BEER NUTS and Clover Club’s BREW NUTS packaging as encountered in the marketplace.
- The court found that the overall appearance and commercial impression of Clover Club’s packaging, including the CLOVER CLUB house mark and design elements, sufficiently distinguished the product’s source.
- The court treated the absence of persuasive evidence of actual confusion as supporting a finding of no likely confusion.
- The court found no direct evidence that Clover Club intended to pass off its product as Beer Nuts’ product.
- Judgment was entered for Clover Club on the Lanham Act infringement claim.

## Legal Principles

- Liability under 15 U.S.C. § 1114(1) requires use of a registered mark (or colorable imitation) in commerce in a manner likely to cause confusion, mistake, or deception.
- Likelihood of confusion is assessed from the viewpoint of ordinary purchasers buying under normal market conditions, not by a courtroom side-by-side comparison alone.
- The confusion analysis considers the overall commercial impression of the marks and trade dress as they appear in the marketplace, including word and design elements and the presence of house marks.
- A plaintiff need not prove actual confusion, but the absence of credible evidence of actual confusion during marketplace coexistence may weigh against likely confusion.
- Evidence of intent to pass off or to trade on another’s reputation may support likely confusion; lack of such evidence may weigh against it.

## Conclusion

Applying a marketplace-focused likelihood-of-confusion analysis on remand, the court concluded that “BREW NUTS,” when presented with Clover Club’s branding and packaging, was not likely to confuse ordinary consumers as to source and therefore did not infringe the BEER NUTS registered mark.


Beer Nuts, Inc. v. Clover Club Foods Co. (Beer Nuts II), 605 F. Supp. 855 (D. Utah 1985)