Absopure Water Co.

Trademark Trial and Appeal Board

Nov 2, 2000

No. 75442768 (T.T.A.B. Nov. 2, 2000)

Paper No. 11
ejs
11/2/00
UNITED STATES PATENT AND TRADEMARK OFFICE
________
Trademark Trial and Appeal Board
________
In re Absopure Water Company
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Serial No. 75/442,768
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John P. Guenther of Rader, Fishman & Grauer PLLC for
Absopure Water Company.
Heather D. Thompson, Trademark Examining Attorney, Law
Office 103 (Michael A. Szoke, Managing Attorney).
_______
Before Cissel, Seeherman and Wendel, Administrative
Trademark Judges.
Opinion by Seeherman, Administrative Trademark Judge:
Absopure Water Company has appealed from the final
refusal of the Trademark Examining Attorney to register
HYDRATION STATION as a mark for "retail beverage vending
services featuring mobile and stationary beverage sampling
booths."1 Registration has been refused pursuant to Section
2(e)(1) of the Trademark Act, 15 U.S.C. 1052(e)(1), on the

1 Application Serial No. 75/442,768, filed March 2, 1998 and
asserting a bona fide intention to use the mark in commerce.
THIS DISPOSITION
IS NOT CITABLE AS
PRECEDENT
Ser. No. 75442768
2
ground that applicant's mark is merely descriptive of its
services.
Both applicant and the Examining Attorney have filed
briefs.2 An oral hearing was not requested.
In support of the refusal the Examining Attorney has
made of record and relies on the following dictionary
definitions:
Hydrate: to supply water to (a person,
for example) in order to restore or
maintain fluid balance;3 to combine
chemically with water4
Station: the place, building, or
establishment from which a service is
provided or operations are directed: a
police station;5 a place equipped for
some particular kind of work, service,
research or the like: gasoline station;
geophysical station.6

2 With its appeal brief applicant has submitted a copy of its
registration for THE HYDRATION DRINK for drinking water.
Applicant had previously referred to this registration in its
response to the first Office action, and the Examining Attorney
implicitly recognized this registration in the following Office
action. Therefore, although applicant should have submitted the
registration during the prosecution of the application in order
to make it of record, see Trademark Rule 2.142(d), in view of
applicant's and the Examining Attorney's actions, we deem the
registration to have been stipulated into the record.
3 The American Heritage Dictionary of the English Language, 3d
ed. © 1992.
4 Random House Unabridged Dictionary, 2d ed.
5 The American Heritage Dictionary of the English Language, 3d
ed. © 1992.
6 Random House Unabridged Dictionary, 2d ed.
Ser. No. 75442768
3
The Examining Attorney has also made of record
excerpts retrieved from a search of the NEXIS data base:7
Pinellas Marine Institute students will
staff hydration stations along the way,
and swimmers can come out of the water
to drink or eat.
"St. Petersburg Times," September 24,
1997
…marathon destination. Team members
will participate in seminars led by
experts, training runs with hydration
stations, team T-shirts, a bon voyage
pasta party and the opportunity to meet
the patient they are running in honor
of….
"The Palm Beach Post," May 4, 1995
…fans at Old Fort Dallas on Thursday
were more interested in other
attractions, such as the Rain Room--a
hydration-station-turned-mud-pit.
[article about Lallapalooza]
"The Dallas Morning News," July 26,
1996
…more than 100 spectators and athletes
had to be treated for heat distress.
For the athletes, A.C.O.G. plans to
have more shade and hydration stations
at Olympic Stadium than USA Track &
Field did.
"Time," July 15, 1996

7 Two additional excerpts were submitted by the Examining
Attorney. However, one consists only of the headline "HYDRATION
STATION; restaurants selling bottle [sic] water," and there is
simply not sufficient context for this excerpt to be useful in
making our determination herein. The second excerpt appears to
have been retrieved by the search simply because of the
juxtaposition of the words "station" and "hydration," "Riders
should drink one to two bottles of water between each aid station
to maintain sufficient hydration…", and is irrelevant to our
determination of the issue of whether HYDRATION STATION is merely
descriptive of the identified services.
Ser. No. 75442768
4
…designed to resemble a space station
with lots of chrome and jargon. The
elevator was a "vertical transport."
The water fountain was a "hydration
station." The exit signs read
"Egress." [article about astronaut
camps]
"Omaha World-Herald," August 6, 1997
Orlando's efforts include more drinking
fountains--or "hydration stations"--at
the Citrus Bowl, teams of roving medics
in the stands, additional first-aid
trailers….
"The Orlando Sentinel," May 29, 1994
…bottle of Evian water and a 25-min.
video of "the making of" Perfectly Fit.
Evian plans to set up three "hydration
stations" at each department store,
doling out product and displaying the
videos, which will be on sale elsewhere
in the stores….
"BRANDWEEK," November 6, 1995
Finally, the Examining Attorney points to statements
made by applicant in its website discussing water and
health, in particular the statement, "Replenishing the
water your body needs is called HYDRATION. You must drink
as much water as you use, or you will become DEHYDRATED,
which can have serious negative effects."
A mark is merely descriptive, and therefore prohibited
from registration by Section 2(e)(1) of the Act, if it
immediately conveys information concerning a quality,
characteristic, function, ingredient, attribute or feature
of a product or service. Moreover, the question of whether
Ser. No. 75442768
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a term is merely descriptive is not decided in a vacuum,
but in relation to the goods on which, or the services in
connection with which, it is used. In re Venture Lending
Associates, 226 USPQ 285, 286 (TTAB 1985).
On the other hand, a mark is suggestive (and therefore
registrable without evidence of acquired distinctiveness)
if "imagination, thought, or perception is required to
reach a conclusion on the nature of the goods" or services.
In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir.
1987). As the courts have frequently recognized, it is
often difficult to determine when a term moves from the
realm of suggestiveness into the sphere of impermissible
descriptiveness, and the distinction is undoubtedly often
made on an intuitive basis rather than as a result of a
logical analysis susceptible of articulation. In re
Recovery, Inc., 196 USPQ 830 (TTAB 1977).
After carefully considering all of the evidence and
arguments, we find that HYDRATION STATION for retail
beverage vending services featuring mobile and stationary
beverage sampling booths falls on the suggestive side of
the line.
The definitions of "hydrate" and the use of the word
"hydration" on applicant's website indicate that
"hydration" has a medical or physiological significance,
Ser. No. 75442768
6
e.g., supplying water to restore or maintain fluid balance,
or combining chemically with water, or replenishing the
water in one's body. It is not a term that would
ordinarily be used in connection with retail beverage
vending services. Further, the NEXIS articles, for the
most part, reinforce this medical connotation. Four of
them use the term "hydration station" in connection with
athletic or other events to refer to places in which the
participants can rehydrate themselves or otherwise prevent
or be treated for dehydration.
Because of the physiological significance of
"hydration," and the particular meaning of "hydration
station" as shown in these articles, consumers would have
to engage in some mental steps to fit the concept of a
HYDRATION STATION to applicant's identified retail beverage
vending services. See In re Reynolds Metals Co., 480 F.2d
902, 178 USPQ 296 (CCPA 1973) (BROWN-IN-BAG found not
merely descriptive of transparent plastic film bags); In re
Universal Water Systems, Inc., 209 USPQ 165 (TTAB 1980)
(PURITY found not merely descriptive of water filtering
units, water filter cartridges and water softening units).
Further, the mark HYDRATION STATION rhymes, and this
fact gives the mark a certain catchiness which creates an
impression separate and apart from the words themselves.
Ser. No. 75442768
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See In re Colonial Stores Inc.,394 F.2d 549, 157 USPQ 382
(CCPA 1968), in which SUGAR & SPICE was found not merely
descriptive of bakery products because it does not tell
potential purchasers only what the goods are, or their
characteristics or ingredients. In its opinion, at 157
USPQ 384, the Court quoted with approval the following
statement made in Ex parte Barker, 92 USPQ 218 (Com. Pat.
1952):
While it may be true that each of the
individual words in the present
applicant's mark are generic and thus
independently unregistrable, it seems
to me that their unusual association or
arrangement in the applicant's mark
results in a unique and catchy
expression which does not, without some
analysis and rearrangement of its
components suggest the contents of
applicant's goods." (emphasis in
quote)
The mark HYDRATION STATION has this same kind of
catchiness. In fact, it appears to us that it is because
of this rhyming catchiness, and the very strangeness of the
term, that both a space camp and the city of Orlando chose
to use the phrase "hydration station" to refer to a water
fountain, just as the term "vertical transport" was used as
a convoluted way of referring to an elevator. We also note
that in the articles reporting this information, the term
Ser. No. 75442768
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"hydration station" is represented in quotation marks,
further indicating that this is an odd term to use.
The only article which arguably refers to a "hydration
station" in a retail context is the report that "Evian
plans to set up three 'hydration stations' at each
department store, doling out product and displaying the
videos, which will be on sale elsewhere in the stores…."
Even here, though, the use of quotation marks indicates
that "hydration station" is not a normal term for a place
where water would be distributed in a retail store.
In sum, because of the rhyming, catchy nature of
HYDRATION STATION, and the evidence that this term is
normally used to refer to places at athletic events where
competitors can rehydrate themselves, we find that this
term does not immediately convey information about a
characteristic or quality of applicant's retail beverage
vending services.
To the extent that there is any doubt about this
conclusion, we follow the established practice that, where
reasonable people may differ, doubt must be resolved in the
applicant's favor. In re The Gracious Lady Service, Inc.,
175 USPQ 380 (TTAB 1972).
Ser. No. 75442768
9
In reaching this conclusion we give effect to the
established practice that, where reasonable people may
differ, doubt must be resolved in the applicant's favor.
In re The Gracious Lady Service, Inc., 175 USPQ 380 (TTAB
1972). To the extent that there is any doubt
Decision: The refusal of registration is reversed.
R. F. Cissel
E. J. Seeherman
Administrative Trademark Judges
Trademark Trial and Appeal Board
Ser. No. 75442768
10
Wendel, Administrative Trademark Judge, dissenting:
I find the evidence of record fully adequate to
establish that the phrase HYDRATION STATION, if used in
connection with applicant's beverage vending services which
are provided at mobile and stationary sampling booths,
would immediately convey information to consumers as to the
nature of these beverage sampling booths. The dictionary
definitions, as well as applicant’s web page, demonstrate
that “hydration” would reasonably be interpreted as the
replenishment of the body with fluids, particularly water.
I find no reason to limit this term to one of medical or
physiological connotation; instead, I am convinced that the
ordinary consumer, upon encountering the term HYDRATION
being used in connection with a beverage sampling booth,
would immediately grasp the significance of the term.
Applicant is providing beverages, most probably water,
which will replenish the fluids in your body. The
additional term STATION is, by dictionary definition, no
more than an apt name for a place from which a service is
provided.
I have no problem with the fact that the Nexis
articles for the most part show use of the term “hydration
station” in connection with locations at which athletes may
obtain fluids in order to combat dehydration. The
Ser. No. 75442768
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connotation of the term is the same; this is a place where
beverages, particularly water, may be obtained which will
replenish bodily fluids. Furthermore, I do not find the
mere fact that HYDRATION STATION rhymes sufficient to
conclude that the mark creates an impression separate from
the descriptive connotation of the words themselves. This
is not a mark similar to SUGAR & SPICE; there is no
“analysis and rearrangement” required to comprehend the
descriptiveness of HYDRATION STATION when used in
connection with beverage sampling booths.
Accordingly, I would affirm the refusal to register
under Section 2(e)(1).
H. R. Wendel
Administrative Trademark Judge
Trademark Trial and Appeal Board