A. Lassonde Inc.

Trademark Trial and Appeal Board

Jul 19, 2000

No. 75231610 (T.T.A.B. Jul. 19, 2000)

Paper No. 15
JQ
7/19/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re A. Lassonde Inc.
________
Serial No. 75/231,610
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Lawrence E. Abelman of Abelman Frayne & Schwab for
applicant.
Jason Turner, Trademark Examining Attorney, Law Office 108
(David Shallant, Managing Attorney).
_______
Before Simms, Seeherman and Quinn, Administrative Trademark
Judges.
Opinion by Quinn, Administrative Trademark Judge:
An application has been filed by A. Lassonde Inc., a
Canadian corporation located in Quebec, Canada, to register
on the Supplemental Register the term shown below
for “fruit juices and fruit drinks.”1

1 Application Serial No. 75/231,610, filed January 27, 1997,
alleging dates of first use of February 21, 1996.
THIS DISPOSITION
IS NOT CITABLE AS PRECEDENT
OF THE T.T.A.B.
Ser No. 75/231,610
2
The Trademark Examining Attorney has refused
registration on the Supplemental Register under Section 23
of the Trademark Act on the ground that the term sought to
be registered is generic and, thus, is incapable of
identifying applicant’s goods and distinguishing them from
those of others.
When the refusal was made final, applicant appealed.
Applicant and the Examining Attorney have filed briefs. An
oral hearing was not requested.
Applicant argues, in urging that the refusal be
reversed, that the applied-for mark appears in a distinct
script and that the term does not constitute the common or
usual name of applicant’s goods. Applicant maintains that
the specimens demonstrate that applicant not only intends
to use FRUITÉ as a mark, but that it is capable of
functioning as a source indicator. Although applicant
acknowledges that the evidence of record shows that a fruit
juice may be described as being “fruity” in flavor, there
is no evidence that fruit juices or fruit drinks are
referred to as a “fruity.” Further, applicant asserts that
there is no evidence showing that the average purchaser
will understand that FRUITÉ means “fruity.” Applicant
contends that the facts that the term is neither an English
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3
word nor the direct translation of the name of the goods
contribute to capability.
The Examining Attorney contends that the proposed mark
is generic. The Examining Attorney asserts that the French
term “fruité” translates into the English word “fruity,” a
word which is commonly used in connection with fruit
beverages. The Examining Attorney goes on to contend that
the term “fruity” is a generic adjective for a type or
category of beverage, namely, “fruity drinks.” The
Examining Attorney also asserts that the stylization of the
proposed mark is not sufficiently distinctive so as to make
it capable of registration. In support of the refusal, the
Examining Attorney submitted dictionary listings for
“fruité” and “fruity,” as well as numerous excerpts
retrieved from the NEXIS database showing uses of the term
“fruity” in connection with beverages.
In order for a term to be registered on the
Supplemental Register, it must be capable of serving as an
indicator of source. Capability is determined by
considering the meaning of the term as applied to the
goods, the context in which the term is used on the
specimens filed with the application, and the likely
reaction thereto by average purchasers upon encountering
Ser No. 75/231,610
4
the term in the marketplace. In re Sambado & Son Inc., 45
USPQ2d 1312 (TTAB 1997).
A mark is a generic name if it refers to the class or
category of goods on which it is used. H. Marvin Ginn
Corp. v. International Association of Fire Chiefs, Inc.,
782 F.2d 987, 228 USPQ 528 (Fed. Cir. 1986). The test for
determining whether a mark is generic is its primary
significance to the relevant public. Section 14(3) of the
Act; Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d
1551 (Fed. Cir. 1991); and H. Marvin Ginn Corp. v.
International Association of Fire Chiefs, Inc., supra. The
Patent and Trademark Office has the burden of establishing
by clear evidence that a mark is generic and thus
unregistrable. In re Merrill Lynch, Pierce, Fenner and
Smith, Inc., 828 F.2d 1567, 4 USPQ2d 1141 (Fed. Cir. 1987).
Evidence of the relevant public’s understanding of a term
may be obtained from any competent source, including
testimony, surveys, dictionaries, trade journals,
newspapers, and other publications. In re Northland
Aluminum Products, Inc., 777 F.2d 1556, 227 USPQ 961 (Fed.
Cir. 1985).
The French term “fruité” is translated into English as
“fruity (of wine, olives).” Cassell’s French-English
Dictionary (1962). The term “fruity” is defined as “of,
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5
containing, or relating to fruit.” Webster’s New Riverside
University Dictionary (1994). Applicant does not dispute
that the term “fruité” is the foreign equivalent of the
English term “fruity.”
Also of record are numerous excerpts showing uses of
the term “fruity” in connection with beverages. Several
articles show use of the term in connection with wine or
alcoholic beverages. There are others, however, which show
use in connection with nonalcoholic beverages. The
following are representative of these latter excerpts:
Smoothies are fruity drinks, featuring
flavors such as mango, papaya and
cranberry.
Cincinnati Business Courier (February
12, 1999)
...a perfect match for its protein
shakes, veggie and fruity drinks.
The News and Observer (March 15, 1998)
Overall, the taste reminded me of a
watered-down fruity kid’s drink.
Ventura County Star (November 18, 1998)
...the colorful, fruity juices made by
a California company, Odwalla, that
promoted its products as some of the
nation’s freshest and healthiest.
The New York Times (January 4, 1998)
...a fruity soft drink.
Business Week (December 29, 1987)
There is no question that the term FRUITÉ (or its
English equivalent “fruity”) is merely descriptive of fruit
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juices and fruit drinks. See: Kellogg Co. v. Pack’em
Enterprises, Inc., 951 F.2d 330, 21 USPQ2d 1142 (Fed. Cir.
1991), aff’g, 14 USPQ2d 1545 (TTAB 1990). However,
although FRUITÉ is merely descriptive, based on the record
before us we find that the term is not generic for such
goods. In making this determination we are reminded of the
Federal Circuit’s observation that “whether a term is
classified as ‘generic’ or as ‘merely descriptive’ is not
easy to discern when the term sits at the fuzzy boundary
between these classifications.” In re Merrill Lynch,
Pierce, Fenner, and Smith Inc., supra at 1141.
The type or category of goods at issue here is fruit
juices and fruit drinks. Thus, the basic inquiry here is
whether members of the relevant public (in this case,
ordinary consumers) use or understand the term sought to be
registered to refer to this type or category of goods.
“Fruity” is not a type or category of fruit beverage.
Rather, “fruity” is a merely descriptive term, indeed a
highly descriptive term, which is used in connection with a
variety of beverages. As shown by the NEXIS articles, the
term describes a quality found in many different beverages,
ranging from mixed cocktails to wine to smoothies and so
on. Although the term “fruity” may describe a quality or
characteristic of applicant’s beverages, it simply does not
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name the type of beverage at issue, as would be the case
with the term “fruit” (i.e., “fruit juice”) See: In re
Bush Brothers & Co., 884 F.2d 569, 12 USPQ2d 1058 (Fed.
Cir. 1989); and In re Waverly Inc., 27 USPQ2d 1620 (TTAB
1993).
The case principally relied upon by the Examining
Attorney, namely In re Sambado & Son Inc., supra, is
clearly distinguishable from the present one. In that
case, FRUTTA FRESCA and its equivalent “fresh fruit” was
determined to be generic inasmuch as the term plainly names
a category of fruit, namely fresh fruit. The type of clear
evidence introduced in that case simply is not of record in
this one.
Lastly, any doubts on this issue are resolved in favor
of applicant. In re Volvo White Truck Corp., 16 USPQ2d
1417 (TTAB 1990).
Decision: The refusal to register is reversed.
R. L. Simms
E. J. Seeherman
T. J. Quinn
Administrative Trademark
Judge, Trademark Trial
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and Appeal Board
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9