868 F.2d 1277
10 U.S.P.Q.2d 1799
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.HIRAM WALKER & SONS, INC., Appellant,v.BARCELO & CO. C. POR A., Appellee.
No. 88-1496.
United States Court of Appeals, Federal Circuit.
Feb. 13, 1989.

Before BISSELL, Circuit Judge, NICHOLS, Senior Circuit Judge, and ARCHER, Circuit Judge.
ARCHER, Circuit Judge.

DECISION

1
Hiram Walker & Sons, Inc.  (Hiram Walker) appeals the grant of summary judgment by the United States Patent and Trademark Office, Trademark Trial and Appeal Board (TTAB), holding no likelihood of confusion.  We vacate and remand.

OPINION

2
Barcelo & Co. C. Por A.  (Barcelo) applied for a trademark on the mark RON BARCELO IMPERIAL for rum.  In its application, Barcelo indicated that "RON" means "rum" in Spanish and disclaimed that word.  Hiram Walker opposed the application on the basis of likelihood of confusion with its marks IMPERIAL and IMPERIAL CROWN for whiskey.


3
Both parties filed motions for summary judgment on the issue of likelihood of confusion.  The TTAB held:


4
There is no question that rum and whiskey are sold in the same channels of trade to the same class of purchasers.  Nevertheless, we agree with applicant that there are sufficient differences in the marks and in the goods that purchasers are unlikely to be confused as to the origin of the respective products....  [T]he term IMPERIAL as used in its mark would be perceived by purchasers as a term suggesting high quality rather than as an indication of origin with opposer.


5
Hiram Walker & Sons, Inc. v. Barcelo & Co., Opposition No. 75, 146, slip op. at 5 (TTAB April 25, 1988).


6
Summary judgment may properly be granted when "there is no genuine issue as to any material fact."    Fed.R.Civ.P. 56(c).  The TTAB's holding that purchasers are unlikely to be confused as to the origin of the respective products is based primarily on its finding that purchasers of rum would perceive the mark as an indication of quality rather than origin.  This finding resolves facts in dispute before the TTAB.  Thus, summary judgment was improperly granted.  We therefore vacate the decision of the TTAB and remand.


7
Hiram Walker argues that the TTAB improperly denied its motion to strike Barcello's reply brief and did not rule on Hiram Walker's motion for leave to file a rebuttal brief.  Because we are vacating the TTAB's decision and remanding the case, that portion of Hiram Walker's appeal is moot.

COSTS

8
Each party shall bear its own costs.

