13 December 2016
THE SHED BREWERY BREWING FRESH ALES SINCE 1995 · ESTABLISHED IN STOWE, VERMONT
Otter Creek Brewing Company LLC believes it will be damaged by registration of the trademark BARNSHED BREWING and design (the “Opposed Mark”) shown in Application Serial No. 87/052,147 and published for opposition on October 25, 2016 (the “Opposed Application”), and hereby opposes said application. The grounds for this opposition are as follows:
1. Otter Creek Brewing Company LLC (“Opposer”) is a limited liability company organized and existing under the laws of the Vermont, and has a place of business at 793 Exchange Street, Middlebury, Vermont 05753.
2. Since at least as early as 1994, Opposer and its predecessors-in-interest have used SHED and THE SHED as trademarks for beer and ale. Opposer also has long used in commerce as a trade name and trademark in connection with beer the designation THE SHED BREWERY.
3. In addition to common law rights in the aforesaid trademarks and trade name, Opposer is the of owner several trademark registrations which incorporate SHED.
4. Opposer is the owner of Registration No. 4,194,407, issued August 21, 2012, for the mark THE SHED for beer and ale.
5. Opposer is the owner of Registration No. 4,614,003, issued September 30, 2014, for the mark SHED, which covers beer, ale, and porter.
6. Opposer is the owner of Registration No. 4,935,038, issued April 12, 2016, for the mark THE SHED BREWERY BREWING FRESH ALES SINCE 1995 · ESTABLISHED IN STOWE, VERMONT & Design, which covers beer and ale.
7. These federal registrations are valid, subsisting on the Principal Register and in full force and effect. Printouts from the USPTO’s TSDR database, attached hereto as Exhibits A, B and C, establish the current status and title of each of the three foregoing federal trademark registrations.
8. Opposer has expended considerable effort in promoting its goods under its marks. Opposer’s efforts have been successful and its trademarks and trade name have become well-known and valuable symbols of the Opposer and its goodwill.
9. Upon information and belief, Barnshed Brewing LLC (“Applicant”) is a New York limited liability company with a place of business at 132 Broadway, Bethpage, New York 11714.
10. On May 27, 2016, Applicant filed the Opposed Application to register a mark in which the dominant component is BARNSHED for “Beer” in International Class 32.
11. The goods listed in the Opposed Application are encompassed by the goods listed in Opposer’s Registrations Nos. 4,194,407, 4,614,003 and 4,935,038.
12. The Opposed Mark was not in use by Applicant prior to January 1, 2016.
13. The Opposed Mark was not in use by Applicant prior to January 1, 2015.
14. Neither the use of the Opposed Mark by Applicant, nor the filing of the application for registration of the Opposed Mark have been done with Opposer’s consent.
15. The Opposed Mark is confusingly similar in appearance, sound, meaning, and commercial impression to Opposer’s registered and unregistered SHED trademarks.
16. The Opposed Mark, when used for the goods recited in the Opposed Application, is likely to cause confusion, mistake or deception within the meaning of Section 2(d) of the Trademark Act, 15 U.S.C. Sec. 1052(d).
17. The Opposed Mark, when used in connection with beer, is likely to cause confusion, to cause mistake, and to deceive the trade and public, who, upon seeing the Opposed Mark in connection with beer, would believe that such goods originate with, are approved, sponsored, or endorsed by, or have some connection or affiliation with Opposer.
18. Registration of the Opposed Mark by Applicant would provide Applicant with prima facie exclusive rights therein, and would harm Opposer by interfering with Opposer’s rights to its registered and common law trademarks.