Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1034980
`
`Filing date:
`
`02/11/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91247192
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`Tarian's
`
`MICHAEL CHRISTOPHER REID
`TARIAN'S
`7530 GEORGIA AVENUE
`WASHINGTON, DC 20012
`UNITED STATES
`chrisrei504@yahoo.com, mikerei504@gmail.com
`219-576-4039
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Other Motions/Papers
`
`Michael Christopher Reid
`
`chrisrei504@yahoo.com, mikerei504@gmail.com
`
`/Michael Christopher Reid/
`
`02/11/2020
`
`Attachments
`
`Common Law Practice.pdf(3116015 bytes )
`
`

`

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`UNITED STATES DEPARTMENT OF COMMERCE
`Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`2900 Crystal Drive
`Arlington, Virginia 22202-3513
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`
`Opposition No. 97, 417
`
`The Institut National Des
`
`Appellations d'Origine
`and The Bureau National
`Inter rofessionel du
`Cognai
`v,
`
`Brown—Forman Corporation
`
`Before Sams, Seeherman and Walters, Administrative Trademark
`
`Judges.
`
`By the Board.
`
`INTRODUCTION
`
`This case now comes up on (a) applicant's motion for
`
`summary judgment1 dismissing opposers' Section 2(a) and
`
`Section 2(d) claims;
`
`(b) opposers' cross-motion for partial
`
`summary judgment as to its ownership of COGNAC as a common
`
`law certification mark; and (c) opposers' motion for leave
`
`1 Applicant's motion is presented as a motion to dismiss under
`Fed. R. Civ. P. 12(b)(6) and/or a motion for summary judgment.
`Because both parties have submitted evidentiary materials
`outside the pleadings and have treated the motion as one for
`summary judgment,
`the Board shall treat the motion likewise.
`See Fed. R. Civ. P. 12(b).
`
`
`
`

`

`Q
`
`Opposition No. 97,417
`
`6
`
`to amend the notice of opposition to add a res judicata
`
`claim.
`
`Each of these motions is contested.
`
`BACKGROUND; PLEADINGS
`
`On May 24, 1994, applicant Brown-Forman Corporation
`
`filed intent—to—use application Serial No. 74/528,394,
`
`seeking to register the mark CANADIAN MIST AND COGNAC for
`
`goods identified as "an alcoholic beverage consisting
`
`primarily of a mixture of Canadian whiskey and cognac."
`
`Applicant has disclaimed the exclusive right to use the
`
`words CANADIAN and COGNAC apart from the mark as shown.
`
`In
`
`an Amendment to Allege Use filed on September 27, 1994,
`
`applicant alleges first use of the mark anywhere and first
`
`use in commerce on September 14, 1994. Applicant has
`
`claimed ownership of Registration No. 750,984,
`
`issued June
`
`11, 1963, which is of the mark CANADIAN MIST (CANADIAN
`
`disclaimed)
`
`for goods identified as "Canadian whiskey," and
`
`of Registration No. 970,915,
`
`issued October 16, 1973, which
`
`is of the mark CANADIAN MIST and maple leaf design (CANADIAN
`
`disclaimed), also for "Canadian whiskey."
`
`On June 8, 1995, a combined notice of opposition to
`
`registration of applicant's mark was filed by The Institut
`
`National Des Appellations d‘Origine (hereinafter INAO) and
`
`by The Bureau National Interprofessionel du Cognac
`
`(hereinafter BNIC). Opposers allege that INAO is an agency
`
`
`
`
`
`

`

`Opposition No. 97,417
`
`‘\
`
`.
`
`of the French government‘s Ministry of Agriculture, and is
`
`responsible for establishing, maintaining and protecting,
`
`both in France and internationally, France's "appellations
`
`of origin" system. Opposers assert that, under French law,
`
`an "appellation of origin" refers to a geographical
`
`designation (country,
`
`region, or locality) that serves to
`
`designate a product originating therein,
`
`the quality and
`
`characteristics of which are due exclusively or primarily to
`
`the geographic environment,
`
`including natural and human
`
`factors. Opposers further assert that certain products
`
`identified and classified according to this system,
`
`including wines and spirits, bear "appellations of
`
`controlled origin" (AOC), each of which is recognized by a
`
`decree which delimits the specific area to which the
`
`appellation pertains but also specifies the grape variety or
`
`varieties, and methods of planting, harvesting, and
`
`production to be used. Opposers allege that COGNAC is an
`
`AOC that has been recognized and protected by INAO and the
`
`French government for many decades.
`
`Opposer BNIC is asserted to be an organization
`
`comprised of wine and spirits growers, producers and
`
`merchants representing growers, producers and merchants from
`
`the Cognac region of France. BNIC's function is to act on
`
`behalf of the Cognac region's wine and spirits growers,
`
`producers and merchants by promoting sales domestically and
`
`
`
`
`
`

`

`Q
`
`Opposition No . 97 , 417
`
`6
`
`internationally, by promoting and protecting the COGNAC
`
`appellation of origin, and by otherwise representing the
`
`economic and legal interest of growers, producers and
`
`merchants of Cognac wines and spirits.
`
`In their notice of opposition, opposers allege,
`
`inter
`
`alia,
`
`that COGNAC is a well—known, distinctive appellation
`
`of origin designating a popular and high quality product;
`
`that French law restricts use of the name COGNAC to
`
`distilled spirits products that meet prescribed standards of
`
`quality and content, and that are produced in the Cognac
`
`region at locations, and under conditions, specified and
`
`regulated by French law, as supervised and enforced by the
`
`INAO;
`
`that the COGNAC appellation has for many years been
`
`known among the relevant purchasing public in the United
`
`States;
`
`that Cognac products meeting the exacting standards
`
`of the French AOC system have been validly and continuously
`
`sold in the United States under labels bearing the COGNAC
`
`name since well prior to applicant's first alleged use of
`
`its mark on September 14, 1994;
`
`that the COGNAC name is a
`
`uniquely French term, which the public associates solely
`
`with opposers and their members,
`
`the regulated producers of
`
`genuine Cognac brandy;
`
`that the name also is symbolic of the
`
`extensive goodwill and consumer recognition built up through
`
`the substantial efforts and investments of the INAO and the
`
`BNIC in the "appellation of origin" system and the COGNAC
`
`
`
`
`
`

`

`Opposition No . !7 , 417
`
`ADC, and through the promotion and sales of these quality
`
`products over many years;
`
`that the COGNAC name has been
`
`afforded special protection through international agreements
`
`binding on the United States,
`
`including the "Bourbon-Cognac
`
`Accord," a 1971 bilateral agreement between the governments
`
`of the United States and France, pursuant to which the
`
`United States government is required to "reserve the use
`
`of the name[]
`
`'Cognac‘
`
`.
`
`.
`
`.
`
`to the French products
`
`entitled by virtue of existing French legislation to use
`
`[that] name[] and to prohibit and repress the use of [that]
`
`name[]
`
`for any other product, even if modified by .
`
`.
`
`. an
`
`indication of the true place of origin," as well as the 1994
`
`Distilled Spirits Agreement between the United States and
`
`the European Community (EC), pursuant
`
`to which the United
`
`States is required to restrict the use of the COGNAC
`
`designation to products of France, produced in compliance
`
`with the standards of identity established by French law and
`
`EC regulation;
`
`that EC regulation prohibits use of the
`
`COGNAC AOC in the designation of products in which other
`
`distilled spirits have been blended with Cognac brandy,
`
`although Cognac brandy may be listed among the ingredients
`
`of such a product; and that the regulations of the United
`
`States Bureau of Alcohol, Tobacco and Firearms (BATF)
`
`establish a standard of identity for Cognac brandy, which
`
`standard specifies that the designation COGNAC applies only
`
`
`
`
`
`

`

`”
`Opposition No .97 , 417
`
`0
`
`to grape brandy distilled in the Cognac region of France,
`
`"which is entitled to be so designated by the laws and
`
`regulations of the French Government," 27 C.F.R. §
`
`5.22(d)(2).
`
`Opposers further allege that:
`
`The phrase that the Applicant is seeking to register
`as a trademark ("CANADIAN MIST AND COGNAC") contains
`
`sound and
`a term that is identical in sight,
`appearance to the protected "Cognac" name. This
`alleged mark, when applied to the goods of the
`Applicant, falsely suggests a connection with
`Opposers, and the persons they represent, within the
`meaning of Section 2(a) of the Trademark Act, 15
`U.S.C. § 1052(a).
`On information and belief,
`applicant employs the protected "Cognac" name in such
`mark with intent to appropriate and trade upon the
`substantial goodwill and recognition that have
`accrued in the "Cognac" name as a result of the
`careful regulation and oversight exercised by the
`INAO and the BNIC over time.
`(Notice of Opposition,
`paragraph 10.)
`
`
`
`Opposers also allege that:
`
`Applicant's alleged mark so resembles the protected
`"Cognac" name as to be likely, when applied to the
`goods of the Applicant,
`to cause confusion, or to
`cause mistake, or to deceive as to the source,
`sponsorship, or affiliation of Applicant's goods
`within the meaning of Section 2(d) of the Trademark
`Act, 17 [sic — should be "15"] U.S.C. § 1052(d).
`The
`purchasing public is likely to believe mistakenly
`that goods promoted and sold by Applicant under such
`mark are sponsored by Opposers and/or the persons
`they represent, or are otherwise affiliated with or
`connected to Opposers,
`the persons they represent, or
`the Cognac they produce. As discussed above,
`the
`"Cognac" name has previously been used in the United
`States, and not abandoned, by Opposers and the
`persons they represent.
`(Notice of Opposition,
`paragraph 11.)
`
`
`
`

`

`Opposition No ’7 , 417
`
`Opposers conclude their notice of opposition by
`
`asserting that applicant's mark is barred from registration
`
`on the Principal Register under Section 2 of the Lanham Act
`
`and Section 2.69 of the Trademark Rules of Practice, 37
`
`C.F.R. § 2.69 (1994).2
`
`2 Trademark Rule 2.69 reads as follows:
`
`Compliance with other laws. When the sale or
`transportation of any product for which registration of a
`trademark is sought is regulated under an Act of Congress,
`the Patent and Trademark Office may make appropriate
`inquiry as to compliance with such Act for the sole
`purpose of determining the lawfulness of the commerce
`recited in the application.
`
`in their summary judgment briefs,
`The parties have disputed,
`whether opposers' citation in their pleading to Trademark Rule
`2.69 and their allegations regarding the various treaties,
`conventions and agreements concerning the designation COGNAC
`constitute a pleaded ground of opposition to registration of
`applicant's mark which is separate from and independent of
`opposers' pleaded claims under Section 2(d) and Section 2(a).
`However,
`the parties' arguments on this issue are merely
`incidental to their primary arguments on the cross—motions for
`summary judgment.
`After consideration of opposers' pleading and the parties'
`arguments,
`the Board concludes that the only statutory grounds
`of opposition alleged in the notice of opposition are Section
`2(a) false suggestion of a connection and Section 2(d) priority
`and likelihood of confusion. Opposers have not shown that the
`treaties, conventions and bilateral agreements alleged in their
`pleading, standing alone, constitute an independent ground of
`opposition to registration of applicant's mark. Likewise,
`Trademark Rule 2.69 is not,
`in itself, a statutory ground of
`opposition.
`It merely authorizes the Trademark Examining
`Attorney to make inquiry,
`in certain circumstances,
`regarding
`the applicant's compliance with other laws in order to determine
`whether applicant's use of the mark is lawful use in commerce,
`under Trademark Act Section 1,
`15 U.S.C. Section 1051.
`See TMEP
`section 907. Opposers also are advised that Section 44(b) of
`the Lanham Act, 15 U.S.C. Section 1126(b), relied on by Opposers
`in their summary judgment briefs, does not provide a statutory
`ground of opposition to registration of applicant's mark.
`If Opposers intend to assert that the provisions of the
`various treaties, conventions and bilateral agreements alleged
`(footnote continued next page)
`
`\
`‘\r
`L"
`
`3
`.
`1
`
`
`
`If‘
`
`
`
`

`

`Opposition (No ’7 , 417
`
`In its answer to the notice of opposition, applicant
`
`admits that products bearing the designation COGNAC on their
`
`labels have been sold in the United States by others since
`
`prior to applicant's first use of its own mark in September
`
`1994. Applicant otherwise denies the allegations of the
`
`notice of opposition which are essential to opposers'
`
`claims.
`
`Applicant also has asserted various affirmative
`
`defenses in its answer, i.e.,
`
`that opposers have failed to
`
`state a claim for relief; that opposers lack standing to
`
`oppose;
`
`that the word "Cognac" is understood in the United
`
`States to be the common descriptive name for brandy produced
`
`in the Cognac region of France, French brandy generally,
`
`(footnote continued from previous page)
`
`in the notice of opposition constitute a ground of opposition
`which is separate and independent from the Section 2(a) and
`Section 2(d) grounds of opposition which are expressly alleged
`in the notice of opposition, opposers are allowed until thirty
`days from the date of this order to file a properly—supported
`motion under Fed. R. Civ. P. 15 for leave to file an amended
`
`notice of opposition which adequately alleges a valid statutory
`basis for such a ground of opposition. Alternatively, within
`thirty days, opposers must file a brief which specifically
`supports their apparent contention that the allegations
`contained in the current notice of opposition regarding the
`treaties, conventions and bilateral agreements state a ground of
`opposition which is independent of the Section 2(a) and Section
`2(d) grounds. Applicant‘s response to any such motion or brief
`filed by opposers shall be due within the time established by
`Trademark Rules 2.127(a) and 2.119(c).
`If opposers fail to file
`such a motion or brief within the time allotted, or if any such
`motion is denied or any such brief is found to be unpersuasive,
`this case shall proceed solely on the pleaded Section 2(d)
`ground of opposition.
`(As discussed,
`infra,
`the Board is
`granting applicant's motion for judgment of dismissal of
`opposers' Section 2(a) claim.)
`
`2
`
`
`
`
`
`

`

`Opposition No. II; , 417
`
`and/or any fine brandy (regardless of geographic origin),
`
`and that applicant's truthful and accurate use of the word
`
`to designate an ingredient of its identified goods cannot
`
`give rise to a likelihood of confusion or to a false
`
`suggestion of a connection with opposers;
`
`that,
`
`to the
`
`extent that opposers allege that "Cognac" is a common law
`
`certification mark,
`
`such mark is invalid because opposers
`
`allege that they have used the mark themselves,
`
`in
`
`contravention of the nature of the alleged certification
`
`mark;
`
`that neither opposers nor their members would be
`
`damaged by registration of applicant's mark because
`
`applicant has disclaimed the exclusive right to use the word
`
`"Cognac," such that applicant's registration will not
`
`interfere with the right of opposers and their members to
`
`use the term to describe their goods;
`
`that opposers will not
`
`be damaged by registration of CANADIAN MIST AND COGNAC
`
`because applicant already owns incontestable registrations
`
`of the mark CANADIAN MIST for very similar goods; and that
`
`opposers and their members have licensed applicant's use of
`
`the term COGNAC as part of the CANADIAN MIST AND COGNAC
`
`mark, and/or are estopped from opposing registration of
`
`CANADIAN MIST AND COGNAC because applicant has entered into
`
`a supply contract with one of opposers' members pursuant
`
`to
`
`which applicant uses,
`
`in its identified goods, only brandy
`
`that has been certified by opposers as "Cognac" under French
`
`
`
`
`
`

`

`Opposition No . !7 , 417
`
`and United States law prior to its sale to and use by
`
`applicant.
`
`SUMMARY JUDGMENT STANDARDS
`
`Generally,
`
`summary judgment is appropriate in cases
`
`where the moving party establishes that there are no genuine
`
`issues of material fact which require resolution at trial
`
`and that it is entitled to judgment as a matter of law.
`
`Fed. R. Civ. P. 56(c). An issue is material when its
`
`resolution would affect the outcome of the proceeding under
`
`governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.
`
`242, 248 (1986).
`
`A fact is genuinely in dispute if the
`
`evidence of record is such that a reasonable factfinder
`
`could return a verdict in favor of the nonmoving party.
`
`gg.
`
`The nonmoving party must be given the benefit of all
`
`reasonable doubt as to whether genuine issues of material
`
`fact exist, and the evidentiary record on summary judgment,
`
`and all inferences to be drawn from the undisputed facts,
`
`must be viewed in the light most favorable to the nonmoving
`
`party.
`
`See Opryland USA,
`
`Inc. v. Great American Music Show,
`
`Inc., 970 F.2d 847, 23 USPQ2d 1471 (Fed. Cir. 1992); Olde
`
`Tyme Foods Inc. v. Roundy's Inc., 961 F.2d 200, 22 USPQ2d
`
`1542 (Fed. Cir. 1992).
`
`10
`
`
`
`
`
`

`

`Opposition No. I7,417
`
`SUMMARY JUDGMENT EVIDENCE
`
`Applicant has moved for summary judgment
`
`in its favor
`
`as to opposers' Section 2(a) and Section 2(d) grounds of
`
`opposition, and opposers have moved for summary judgment
`
`in
`
`their favor on the issue of whether they own certification
`
`mark rights in the term COGNAC.
`
`The Board shall first
`
`discuss the evidence submitted by the parties with respect
`
`to these pending motions and then shall discuss the parties‘
`
`arguments.
`
`Applicant has presented evidence showing that applicant
`
`has sold CANADIAN MIST brand Canadian whiskey in the United
`
`States for over thirty years with great success;
`
`that
`
`applicant has made $650 million in sales of CANADIAN MIST
`
`brand Canadian whiskey since 1990;
`
`that applicant spent
`
`$2,000,000 on advertising CANADIAN MIST brand Canadian
`
`whiskey in the United States in 1994;
`
`that CANADIAN MIST
`
`brand Canadian whiskey was the seventh—largest selling brand
`
`of spirits in the United States in 1994;
`
`that applicant owns
`
`two incontestable registrations of the CANADIAN MIST mark
`
`for Canadian whiskey3;
`
`that applicant's advertisements for
`
`CANADIAN MIST brand Canadian whiskey have emphasized a
`
`Canadian theme or heritage;
`
`that applicant's CANADIAN MIST
`
`AND COGNAC product contains no less than 40% Cognac brandy;
`
`3 Registration Nos. 970,915 and 750,984.
`
`ll
`
`
`
`
`
`

`

`Opposition No.
`
`!7,417
`
`that prior to applicant's filing of the application involved
`
`herein, applicant had entered into a supply agreement with a
`
`producer of grape brandy in the Cognac region of France, one
`
`of opposers' members,
`
`to supply applicant with bulk Cognac
`
`brandy,
`
`the terms of which agreement require the supplier to
`
`certify that the Cognac brandy supplied complies with all
`
`ingredients and labeling requirements applicable to the
`
`production and importation of Cognac brandy under French and
`
`United States law;4 and that applicant has obtained Bureau
`
`of Alcohol, Tobacco and Firearms (BATF)
`
`label approval for
`
`six different labels bearing the CANADIAN MIST AND COGNAC
`
`mark.
`
`Applicant also has submitted evidence consisting of
`
`excerpts from several dictionaries, all of which include, as
`
`their primary definition of the word "Cognac," a specific
`
`reference to brandy from the Cognac region of France, and
`
`some of which include a secondary definition of "Cognac" as
`
`"any fine brandy." Additionally, applicant has submitted
`
`copies of forty-eight third—party registrations,
`
`some of
`
`4 The supply contract between applicant and its supplier is
`dated May 30, 1994 and states that its term is three years.
`Under the heading "QUALITY," the agreement states:
`"The Cognac
`you sell us will be [sic] meet the quality specifications set
`forth in Schedule A to this Agreement.
`In addition,
`the Cognac
`must comply with French and United States laws and regulations
`applicable to the ingredients and labelling, as such laws and
`regulations may be in effect from time to time."
`"Schedule A"
`to the agreement is a "Certificate of Analysis for Cognac,"
`printed on the letterhead of opposer BNIC.
`
`12
`
`
`
`

`

`Opposition No .97 , 417
`
`which have expired or been cancelled, assertedly offered by
`
`applicant to show that the Office accepts the word "Cognac"
`
`in identifications of goods, and that when the word COGNAC
`
`appears in the registered marks it often is disclaimed or
`
`the mark is on the Supplemental Register.
`
`The registrations
`
`appear to be owned by various spirits producers and
`
`importers located in France and the United States.
`
`Applicant also has submitted the complete file history
`
`of Registration No. 1,520,026, which issued on January 10,
`
`1988 to an Italian corporation and which has since been
`
`cancelled under Section 8.
`
`The registration is of the mark
`
`OPERA GRAND COGNAC (GRAND COGNAC disclaimed)
`
`for goods
`
`identified as "chocolate filled with cognac and liqueurs."
`
`The specimens of use in the registration describe the goods
`
`as "the twin liqueur chocolate with real Napoleon Cognac."
`
`Finally, applicant has submitted the results of a
`
`NEXIS® search conducted by its attorney,
`
`in which 16,339
`
`references to the word "Cognac" appeared in the ALLNEWS
`
`database,
`
`fifty—nine of which (.0036% of the total,
`
`according to applicant) also made reference to one or both
`
`of the opposers. Applicant has submitted printouts of those
`
`fifty—nine articles.
`
`The Board has reviewed these articles
`
`and notes that many of them, appearing in publications
`
`including The New York Times, The Chicago Tribune, The Los
`
`Angeles Times, The Washington Post, and Money Magazine,
`
`13
`
`
`
`
`
`

`

`Opposition No.7 , 417
`
`include specific references to opposers and discussions of
`
`the French laws and regulations governing production and
`
`marketing of brandy under the COGNAC designation.
`
`Opposers' evidence on summary judgment includes the
`
`declaration of Frederique Helin, an attorney employed by
`
`opposer INAO. Mr. Helin provides detailed explanations of
`
`INAO's structure and functions, of the French system of
`
`Appellations of Origin and Appellations of Controlled
`
`Origin, and of the framework of legal protection afforded
`
`such appellations under French law, European Community law,
`
`and international and bilateral treaties, conventions and
`
`agreements. Mr. Helin asserts that applicant's goods, which
`
`consist of a blend of Canadian whiskey and Cognac brandy,
`
`could not legally be imported or sold under the mark
`
`CANADIAN MIST AND COGNAC in France or in any of the European
`
`Community countries, and that the United States is obligated
`
`under treaty, convention and bilateral agreement
`
`to prohibit
`
`applicant's use or registration of the mark in this country
`
`as well. Copies of certain of the laws, regulations, and
`
`agreements referred to by Mr. Helin in his declaration are
`
`attached as exhibits to the declaration.
`
`Opposers also have submitted the declaration of Jean—
`
`Marc Girardeau, an attorney employed by opposer BNIC. Mr.
`
`Girardeau explains the structure and functions of BNIC, and
`
`gives a detailed account of the production and certification
`
`14
`
`
`
`
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`

`

`Opposition No . .7 , 417
`
`processes for Cognac brandy, as prescribed by French law and
`
`regulation.
`
`He asserts that 147.6 million bottles of Cognac
`
`brandy are sold per year,
`
`including 27.2 million bottles per
`
`year sold to purchasers in the United States, and that
`
`approximately $10.2 million is spent per year on advertising
`
`Cognac brandy in the United States.
`
`He asserts that one of
`
`BNIC's associated members has informed him that applicant
`
`was the exclusive distributor for the firm of Martell
`
`Cognac, and that applicant thus would be aware of the laws
`
`and regulations pertaining to Cognac brandy, as well as the
`
`certification and enforcement roles played by opposers.
`
`Attached to Mr. Girardeau's declaration is a copy of
`
`applicant's "Canadian Mist
`
`& Cognac Market Introduction
`
`Guide," which BNIC obtained from a retailer who had received
`
`it from applicant.5
`
`5 Following are excerpts from applicant's Marketing Guide:
`
`& Cognac?
`— ~ Question 1: What is Canadian Mist
`Answer: Canadian Mist & Cognac is a unique delicious blend of 6
`year—old Canadian Whisky and rich French Cognac.
`It was created
`specifically for those who seek the smooth taste of aged
`Canadian Whisky, yet also relish the exquisite taste of fine
`Cognac.
`
`- - Since Canadian Mist is referred to as 'Wfist" by the
`majority of its current consumers,
`the nickname "Mist & Cognac"
`will be used for all promotional purposes and for the balance of
`this document.
`
`— — Question 2: Why did you blend Canadian Whisky and
`Cognac?
`
`Answer: Mist & Cognac was a creation waiting to happen and its
`uniqueness is a result of the terrific compatibility of Canadian
`Whisky and Cognac. Developed in the lush Charente region of
`(footnote continued next page)
`
`15
`
`
`
`
`
`

`

`Opposition No.7 , 417
`
`(footnote continued from previous page)
`
`Southwestern France, Cognac remains the premier spirit of choice
`among young and old consumers alike and represents the finest
`spirit that money can buy. Cognac is distinguished from other
`spirits because of its double distillation process that helps to
`refine Cognac's powerfully rich flavor.
`In Mist & Cognac we use
`V.S. quality Cognac.
`On the other hand, Canadian whisky
`distinguishes itself from other whiskies through its differing
`maturation process.
`In Mist
`& Cognac we use carefully aged 6-
`year old Canadian Whisky which adds the smooth, mellow flavor to
`this new blend that is destined for stardom.
`
`- - Question 3: Is "Mist & Cognac a Cognac or a Whisky?
`Answer: It's both.
`No less than 40% of the spirits in Mist
`&
`Cognac is Cognac.
`In fact, Mist & Cognac offers many benefits
`versus both whisky and cognac.
`It represents the best that both
`of those fine spirits have to offer.
`
`"Mist & Cognac" vs. Whiskey
`— can be served as an after-dinner
`
`"Mist & Cognac" vs. Cognac
`- Affordable Price
`
`drink
`- Cognac aroma, flavor and finish
`- Mellow
`
`— Better mixability
`- Lighter
`— Smoother
`
`— Cognac status and prestige
`
`& Cognac?"
`— - Question 4: What Consumers will buy "Mist
`Answer: A broad group of liquor drinkers. However, we feel the
`prime prospects for Mist
`& Cognac are.
`.
`— Male and female Brandy, Premium Whisky, Canadian Mist and
`occasional Cognac drinkers.
`- Trendsetters,
`trendseekers, and status-seekers 21—49 years of
`age. These drinkers have a high school education and earn less
`than $50,000 per year.
`
`& Cognac" is a cognac blend. Will
`~ — Question 6: "Mist
`it appeal
`to exclusive cognac drinkers?
`Answer: Yes, research has shown that exclusive Cognac drinkers
`have a 78% acceptance rate, only 1% lower than occasional Cognac
`drinkers.
`
`& Cognac?"
`— — Question 8: HOW do you drink "Mist
`Answer: Any way you like. Straight, on-the-rocks, with your
`favorite juice or soda, it's the versatility of Mist
`& Cognac
`that makes it so special.
`In fact, consumer research shows that
`49% would consume the product straight,
`like premium Cognacs,
`versus 38% who prefer to mix the product. Either way, Mist &
`Cognac is delicious, yet these statistics suggest the consumer's
`propensity to drink Nfist & Cognac like other premium, high
`quality Cognacs.
`
`(footnote continued next page)
`
`16
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`
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`

`

`»
`Opposition N097 , 417
`
`3
`
`Opposers also have submitted the declaration of Bruno
`
`Bonnet, who states that he is currently the Wine/Beer
`
`Manager/Buyer for Sutton Place Gourmet
`
`in Bethesda,
`
`Maryland;
`
`that he has been a professional in the
`
`international wine and spirits industry since 1980;
`
`that he
`
`is professionally trained and has been employed as a
`
`sommelier in some of the finest wine and spirit serving
`
`establishments in the United States,
`
`including at the
`
`Willard Inter—Continental Hotel
`
`in Washington, D.C.
`
`from
`
`July 1987 through May 1993;
`
`that, as a sommelier, he is
`
`professionally trained to have extensive knowledge regarding
`
`wines and spirits,
`
`including Cognac brandies;
`
`that he has
`
`received several awards in recognition of his experience and
`
`
`
`(footnote continued from previous page)
`
`— - Mist & Cognac should be well on its way to becoming a
`premier Cognac blend in the spirits marketplace.
`
`— - PRICING GUIDELINES (off and on-premise)
`Mist & Cognac is to be retail shelf-priced above popular—priced
`Canadians such as Seagram's V.O., Canadian Club,
`Imported and
`domestic brandies, and below Crown Royal and Cognacs on all
`sizes. On—premise, Mist & Cognac drink prices should be below
`Cognacs and within the premium drink price slot allotted to
`Canadian Club, Seagram's V.O., and Crown Royal.
`
`& Cognac should be retail shelf-priced below Premium Cognac
`Mist
`(i.e. Hennessey, Courvoisier, etc.) and Crown Royal by the
`following ranges (off-premise):
`
`Example: 750ml Pricing
`
`Brand
`Segment
`Hennessy
`Premium Cognac
`Crown Royal
`Premium Canadian
`MIST & COGNAC
`
`Price
`$19.99
`$17.99—$19.99
`$13.99-$l4.99
`
`l7
`
`
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`
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`

`

`Opposition No .7 , 417
`
`skills and has lectured at various culinary schools,
`
`including the Culinary Institute of America, asserted to be
`
`the premier culinary school
`
`in the United States;
`
`that his
`
`duties as sommelier have included selecting the wines and
`
`Cognac brandies to be included in the restaurant's stock,
`
`which requires extensive interaction with the wine and
`
`spirit industry sales representatives; and that his duties
`
`also have included extensive interaction with the general
`
`public in order to educate them about Cognac brandies,
`
`to
`
`help them select the Cognac brandy that best suits their
`
`taste.
`
`Mr. Bonnet also makes the following assertions:
`
`
`
`It is my experience that American purchasers and
`consumers of Cognac correctly associate the word
`"Cognac" with genuine Cognac that is produced in the
`Cognac region of France, and not merely with just
`"any fine brandy." Americans who purchase and
`consume Cognac are aware that although all Cognac is
`brandy, not all brandy is Cognac.
`
`Based on my professional training and experience
`as a Sommelier, and my interaction with the Cognac
`consuming and purchasing public over the years, it is
`my opinion that the name "CANADIAN MIST AND COGNAC"
`would be confusing to that public. This confusion
`would take one or more of several forms:
`
`Some consumers are likely to believe
`a.
`mistakenly that "CANADIAN MIST AND COGNAC"
`is a new
`brand of genuine Cognac, and/or that it is the
`product of a Cognac firm;
`_b.
`Some consumers who previously understood or
`came to expect by reputation and experience that only
`genuine, unadulterated Cognac was contained in
`bottles labeled "Cognac" are likely to conclude
`is
`mistakenly that because "CANADIAN MIST AND COGNAC"
`a blend of Canadian whiskey and Cognac, all products
`labeled Cognac are potentially a blend of Cognac and
`
`18
`
`
`
`

`

`Opposition No.97 , 417
`
`ll
`
`thereby destroying the efforts of the
`something else,
`French government to ensure that all products labeled
`"Cognac" are pure, genuine Cognac.
`
`It is also my opinion that wholesalers and
`retailers who deal with Cognac, who are aware that
`Cognac is a specific kind of brandy produced in
`France, might also mistakenly conclude that "CANADIAN
`MIST AND COGNAC" is a new importer of genuine Cognac.
`Thus,
`they would likely convey this misinformation to
`their customers, either directly in response to
`consumer questions about available Cognac stocks, or
`indirectly by stocking "CANADIAN MIST AND COGNAC"
`with Cognacs,
`thereby implying to the customer that
`it is a Cognac.
`
`Sommeliers, as well as most Cognac wholesalers and
`retailers, are aware that all Cognac is certified as
`genuine Cognac from the Cognac region of France by
`the Bureau National Interprofessionel Du Cognac
`("BNIC") before it can be exported from France or
`labeled Cognac.
`
`Finally, opposers also have submitted the declaration
`
`of Brian Chilton, one of their attorneys. Attached thereto
`
`is a copy of an item entitled The Three Great Brandies From
`
`France,
`
`from The New Basics Cookbook by Julee Rosso & Sheila
`
`Lukins
`
`(Workman 1989), at page 682;6 a copy of an article
`
`from the November 1995 issue of Food & Wine magazine
`
`entitled "Cognac - A connoisseur's guide to the basics and
`
`6 This excerpt from the cookbook reads as follows:
`
`Cognac: Smoother and considered finer than the spirited
`Armagnac, Cognac is distilled twice and put to age in
`Limousin oak barrels and develop its rich amber color.
`The western region of Grande Champagne is most well known
`for this sophisticated brandy, which by law is produced
`only from Folle Blanche, Colombard, and Saint—Emilion
`grapes.
`Swirl it in large brandy snifters and enjoy it
`after a perfect dinner.
`The most familiar and best Cognac
`in America is labeled V.S.O.P. for Very Superior Old Pale.
`
`l9
`
`
`
`
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`

`

`Opposition No.7 , 417
`
`how to buy the best bottles";7 and a copy of an article
`
`about super—premium Cognac brandies from the March 1992
`
`issue of Bon Appetit magazine, entitled "Cognac