## Facts

- Majestic Distilling Company applied to register the standard-character mark “RED BULL” for tequila, claiming use in commerce dating to 1984.
- The examining attorney refused registration under Lanham Act § 2(d) based on likelihood of confusion with existing “RED BULL” registrations for alcoholic beverages, including malt liquor.
- During administrative proceedings, a cited registration for “RED BULL” for Scotch whiskey was cancelled, but other “RED BULL” registrations for malt liquor issued and remained in force.
- The Trademark Trial and Appeal Board (TTAB) affirmed the refusal, finding likely confusion between Majestic’s mark for tequila and prior “RED BULL” marks for malt liquor.
- Majestic appealed to the Federal Circuit.

## Issues

1. Whether “RED BULL” for tequila is likely to cause confusion with registered “RED BULL” marks for malt liquor under Lanham Act § 2(d).
2. How the DuPont likelihood-of-confusion factors apply where the word marks are identical (or legally identical) and the goods are different types of alcoholic beverages.

## Decision

- The Federal Circuit affirmed the TTAB’s refusal to register Majestic’s “RED BULL” mark for tequila.
- The court agreed that the marks were legally identical because a standard-character mark is not limited by font or stylization, and the cited registrations used the same wording.
- The court held that tequila and malt liquor are related goods for § 2(d) purposes because both are alcoholic beverages likely to be sold through similar trade channels to similar consumers.
- Because the identifications contained no channel-of-trade limitations, the TTAB properly presumed sales through all normal channels and to all normal classes of purchasers for such goods.
- The court accepted that these goods are often relatively low-cost and subject to impulse purchase, increasing the probability of confusion.
- The absence of evidence of actual confusion did not defeat the refusal because § 2(d) requires only a likelihood of confusion, and the record did not make non-occurrence of confusion strongly probative.

## Legal Principles

- Likelihood of confusion under Lanham Act § 2(d) is evaluated using the DuPont factors; only factors relevant to the record must be weighed, and their weight may vary.
- A standard-character application may be treated as encompassing any stylization; minor stylization differences in a cited registration typically do not reduce similarity when the wording is the same.
- Relatedness of goods is assessed based on the goods as identified in the application and registrations and their marketplace relationship, not on technical distinctions in manufacturing or composition.
- When identifications do not restrict trade channels or purchaser classes, the PTO may presume the goods move through all ordinary channels for those goods and reach ordinary purchasers.
- Proof of actual confusion is not required to sustain a § 2(d) refusal; substantial similarity of marks and relatedness of goods can be sufficient.

## Conclusion

The Federal Circuit upheld refusal of registration because identical “RED BULL” marks used on related alcoholic beverages, sold through overlapping channels to ordinary consumers, created a likelihood of confusion under Lanham Act § 2(d).


In re Majestic Distilling Co., 315 F.3d 1311 (Fed. Cir. 2003)