Winery and Kombucha Tea companies battle over use of BAREFOOT trademark

Recently, E. & J. Gallo Winery (“Gallo”) opposed the registration of a trademark application filed by Conscious Cultures LLC (“CC”) for the term BAREFOOT BUCHA.[1] CC applied for registration of the mark BAREFOOT BUCHA for use in connection with Kombucha Tea.[2] According to CC’s website, Kombucha Tea is a “naturally carbonated, fermented tea that originated in Eurasia” which is usually drank after a meal and provides digestive benefits.[3] The Kombucha Tea provided by CC does not contain alcohol.[4]

In its opposition Gallo alleges that it is the owner of the family of trademarks for the term BAREFOOT which has been used in connection with a variety of wine related products and services since 1986.[5] Gallo alleges that it is the prior user of the mark BAREFOOT and that CC’s use of the term BAREFOOT BUCHA is likely to confuse consumers about the source of the respective products.[6]

This opposition is interesting because it involves a dispute between two products that are sold in the same channels of trade, i.e., beverage products, but that are arguably marketed to a different class of consumer. A finding of likelihood of confusion does not require that the respective products be related, as there are several other factors that will be considered, such as the similarity of the respective trademarks or whether actual confusion exists. Nonetheless, CC is likely to raise the argument that it’s’ Kombuca Tea is a completely different product from Gallo’s wine and is sold to a different class of consumers who are not likely to believe that it originates from Gallo.

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Daniel Devine, Esq.
Santucci Priore, P.L.
Shareholder

[1] See, E. & J. Gallo Winery v. Conscious Cultures LLC, Opposition No. 91222763 (TTAB July 10, 2015).
[2] Id.
[3] See, http://www.barefootbucha.com/faqs/
[4] Id.
[5] See, E. & J. Gallo Winery v. Conscious Cultures LLC, Opposition No. 91222763 (TTAB July 10, 2015).
[6] Id.