“Ambiguous” Consent Agreement Dooms Trademark Registration Appeal

The Trademark Trial and Appeal Board has affirmed a refusal to register microbrewery 8-Bit Aleworks’ application for a trademark despite an agreement between the company and 8bit Brewing Company specifying that 8bit did not object to the use. In re 8-Brewing LLC, No. 86760527 (T.T.A.B., entered October 30, 2017). The court found the consent agreement to be ambiguous and confusing as to which marks were covered by the agreement and vague as to how trade dress and packaging would distinguish the products. Further, the agreement failed to demonstrate how the companies’ trade channels were different. Accordingly, the court held that “the shortcomings in the consent agreement are such that consumer confusion remains likely” and affirmed the refusal to register the mark.