AOP LLC

Trademark Trial and Appeal Board

Jul 12, 2013

No. 85009094 (T.T.A.B. Jul. 12, 2013)

Mailed: July 12, 2013

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re AOP LLC
________

Serial No. 85009094

_______

David E Weslow of Wiley Rein LLP, for AOP LLC.

Edward Fennessy, Trademark Examining Attorney, Law Office
114 (K. Margaret Le, Managing Attorney).
_______

Before Quinn, Kuhlke, and Ritchie,
Administrative Trademark Judges.

Opinion by Ritchie, Administrative Trademark Judge:

AOP LLC (“applicant”) filed an application to register
on the Principal Register the mark AOP in standard
characters for “wine” in International Class 33.1 The

1 The application was filed April 8, 2010, under Section 44(d)
based on a prior Canadian application. The examining attorney
has noted that multiple parties have filed oppositions to the
Canadian application, including the European Commission on behalf
of the European Community (Brief, note 8). On February 7, 2011,
applicant filed an Amendment to Allege Use (AAU) and withdrew its
basis under Section 44. The Office entered the AAU, amending the
application to one made pursuant to 15 U.S.C. § 1051(a), alleging
dates of first use on March 28, 2008, and first use in commerce
on November 12, 2009. The application was filed by Julia Wine
Inc., a Canadian corporation. The assignment to AOP LLC, a
THIS OPINION IS A PRECEDENT
OF
THE T.T.A.B.
Serial No. 85009094
2
examining attorney has refused registration of the
application on five grounds. The examining attorney
refused registration under Section 2(a) of the Trademark
Act of 1946, 15 U.S.C. § 1052(a), on the ground that the
mark sought to be registered is deceptive in relation to
the identified goods. The examining attorney additionally
refused registration on the ground that the mark is
deceptively misdescriptive under Section 2(e)(1) of the
Trademark Act, 15 U.S.C. § 1052(e)(1), or alternatively is
merely descriptive thereof under the same statutory
provision. The examining attorney issued a fourth ground
for refusal that the mark fails to function as a trademark,
because, as used on the specimen of record, it is merely
informational matter pursuant to Trademark Act Sections 1,
2 and 45, 15 U.S.C. §§ 1051-1052, 1127. Finally, the
examining attorney refused registration on the ground that
applicant did not adequately respond to, or comply with, a
request for information concerning its goods, specifically
an inquiry as to whether the goods “originate in Europe”
and “whether the mark AOP indicates a type and/or grade of
applicant’s goods.” 37 C.F.R. § 2.61(b).

United States corporation executed on March 9, 2011 is recorded
at Reel/Frame 4497/0470.
Serial No. 85009094
3
When all of the refusals were made final, applicant
filed an appeal. Applicant and the examining attorney each
filed briefs, and applicant filed a reply brief. We
address each of the refusals in turn.
2(a) Deceptiveness
In accordance with Section 2(a) of the Trademark Act,
registration must be refused if a mark is deceptive in
relation to the identified goods. The Office has the
initial burden of putting forth a prima facie case that a
trademark falls within the prohibition of Section 2(a). In
re Budge, 857 F.2d 773, 8 USPQ2d 1259, 1260 (Fed. Cir.
1988) (LOVEE LAMB deceptive for “automotive seat covers”).
The test for deceptiveness is: 1) whether the mark
misdescribes the goods; 2) if so, whether consumers would
be likely to believe the misrepresentation; and 3) whether
the misrepresentation would materially affect potential
purchasers’ decisions to purchase the product. Id. at
1260. See also In re California Innovations, Inc., 329
F.3d 1334, 66 USPQ2d 1853, 1854 (Fed. Cir. 2003); In re E5
LLC, 103 USPQ2d 1578 (TTAB 2012); In re White Jasmine LLC,
106 USPQ2d 1385 (TTAB 2013).
In looking at the first element, we must decide
whether the term “AOP” misdescribes applicant’s “wine,” the
goods for which applicant seeks registration. The
Serial No. 85009094
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examining attorney contends that consumers will understand
the term “AOP” to refer to the European regulatory system
for designating the quality and origin of wine, and use of
the initialism would misdescribe applicant’s “wine,” if not
of such quality and origin. In support of the refusal, the
examining attorney submitted a significant amount of
evidence to show that “AOP” is a term used by members of
the European Union [EU], to designate a particular quality
and geographical origin of wine. The following is
representative:
What does AOP stand for?: Appellation d’Origine
Protégée (French & European protection of
geographic products).
www.acronymfinder.com. Attached to March 15,
2011 Office Action, p. 2.

Google translate: Appellation d’Origine Protégée
= Protected Designation of Origin.
google.translate.com. Attached to March 15, 2011
Office Action, p. 4.

French Wine Classification: AOC (Appellation
d'origine Contrôlée): An AOC classification acts
as a consumer guarantee that a wine is of a
particular quality, and, generally, of a
particular style. It also states that the wine
has been made in a designated area, in accordance
with local wine production laws and regulations.
AOP (Appellation d’Origine Protégee): the
European-wide equivalent of the French national-
level AOC.
www.wine-searcher.com. Attached to March 15,
2011 Office Action, p. 5.

www.wine-searcher.com. Attached to March 15,
2011 Office Action, p. 9 [image below, with the
use of AOP highlighted in dark blue]:
Serial No. 85009094
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Good riddance AOCs, hello AOPs: Look closely at
your next bottle of rosé, and you’ll notice your
favorite summer thirst-quencher is different this
year. It’s probably labeled Appellation
d’Origine Protégée or Indication Géographique
Protégée. This is good news for wine lovers.
http://jonathonhealey.blogspot.com. Attached to
March 15, 2011 Office Action, p. 21.

The French AOC (Appellation d'Origine Contrôlée)
label will shortly be replaced by the European AOP
(Appellation d’Origine Protégée) label. However,
these two labels have the exact same function – to
enable customers to recognize high-quality
products from a guaranteed region of origin.
Serial No. 85009094
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http://uk.franceguide.com. Attached to October
31, 2011 Office Action, p. 2.

Understanding the Label: Appellation d’Origine
Contrôlée/Appellation d'Origine Protégée
(AOC/AOP) The European AOP classification is in
the process of replacing the old French AOC
classification, following a European ruling in
2009. The terms are most frequently used in the
classification of wines, but more recently has
been extended to act as a label of quality and
authenticity for certain regional and local
specialties, including cheeses.
http://about-france.com. Attached to March 15,
2011 Office Action, p. 33.

Globalwinespirits.com. Attached to October 31,
2011 Office Action, p. 5 [image below, with use
of AOP highlighted in dark blue]:

Article 2: Products Concerned: This competition is
open only for wines produced from grapes that have
Serial No. 85009094
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been certified as being organically grown and
belonging to one of the following categories:
Wines from non-specific geographic locations (vins
sans IG)
Vintage-dated with official quality status
specification (AOP and IGP)
www.millesime.com. Attached to October 31, 2011
Office Action, p. 124.

The new laws will feature three quality tiers:
AOP (Appellation d’Origine Protégée). Besides
the name change from AOC, virtually nothing else
has changed. All of the stringent AOC
requirements remain in place. The singular focus
on terroir continues to be on designation.
www.bettyswinemusings.com. Attached to October
31, 2011 Office Action, p. 127.

Applicant admits that “The AOP mark is a coined
initialism for APPELLATION D’ORIGINE PROTEGEE.” (Response
to Office Action September 15, 2011).2 Accordingly, there
is no dispute as to the definition of the term. Neither
does applicant dispute that the European Union devised the
term “AOP” for use in the manner discussed by the evidence.
(appl’s brief at 2). However, applicant argues, via a
declaration from Joel Butler, dated April 29, 2012,
submitted with its response to an Office action, that U.S.
consumers will not be aware of the significance of the EU
designation “AOP.” Mr. Butler states that his comments are

2 The examining attorney further submitted evidence of another
application filed by applicant for the term AOP APPELLATION
D’ORIGINE PROTEGEE for, among other things, “wines;” Application
Serial No. 85421063. A check of Office records shows that the
application was abandoned on June 13, 2012 for failure to timely
respond to an Office action.
Serial No. 85009094
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made “based on my training as a Master of Wine and my
extensive experience in the United States and international
wine industries.” (Butler decl. Para. 1). According to Mr.
Butler’s declaration, “U.S. wine consumers generally do not
understand AOP or Appellation d’Origine Protégée to
describe ‘wines from Europe that are of a particular
quality and type.’” Id. at Para 10. He says this is
because “the European Union’s designation is not yet
mandatory and therefore does not appear on most European
wines distributed in the United States,” because “AOP is a
French-based acronym,” and because “most U.S. wine
consumers do not understand European designations of
origin.” Id. at para. 11.
We find Mr. Butler’s statements to be belied by the
substantial evidence submitted by the examining attorney.
There are numerous examples in the record of widely-
available websites, connected to generic top-level domains.
We can only assume that U.S. consumers are exposed to those
websites and have the same perceptions of them as any other
consumers, particularly as the evidence frequently shows
the designation “AOP” listed with English-language
discussions of the European designation of quality and
Serial No. 85009094
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origin.3
The record contains substantial evidence that, indeed,
“AOP” is the designation employed by the European
regulatory system outlined by the examining attorney,
including the following further evidence:
New EU wine regulations in force: The European
Union’s new wine regulations have come into
force, ushering in a new era for the European
wine industry.
[Correction[:] in this article we say ‘The French
AOC becomes AOP’, implying that AOC is going to
disappear. That is not the case. AOP is a
protection granted at the European level to a
wider range of consumer products; it reforms some
of the barriers formerly imposed by AOC, without
replacing it.] Decanter.com. Attached to June
19, 2012 Office Action, p. 44.

We Study Wine: Map of France’s A.O.P. Wine
Regions; Labels: AOP, France, France Wine Regions
Map, Map.
http://westudywine.blogspot.com. Attached to
June 19, 2012 Office Action, p. 47.

Moreover, the evidence shows that consumers, through
websites, are exposed through websites to bottles of wine
with the AOP designation. Indeed, some of the above web
postings, including some blogs, appear to be particularly
prepared for, or at least directed to, U.S. consumers; and
the following example is a listing of drinks served by

3 In making this finding, we exclude from our consideration
submissions from the examining attorney made in languages other
than English, and repetitive submissions. Cf. In re Bayer AG,
488 F.3d 960, 82 USPQ2d 1828, 1835 (Fed. Cir. 2007) (finding U.S.
scientific researchers more likely to peruse foreign websites in
English).
Serial No. 85009094
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United airlines:
United BusinessFirst ® long-haul flights
Champagnes
. . . .
Champagne PANNIER “Tradition” AOP Champagne White
Brut NV

Red wines
. . . .
Domaine Santa Duc AOP Cotes du Rhone Villages
Cairanne “Les Buissons” 2010

www.united.com. Attached to October 31, 2011
Office Action, p. 145.

The record establishes that AOP is a designation of
origin used by the European Union. Applicant is not the
entity that administers the AOP and has admitted that
“[a]pplicant’s goods do not necessarily originate in
Europe.” (September 15, 2011 Response to Office Action).4
Accordingly, we find that applicant’s mark misdescribes its
product, and this first element of the test for
deceptiveness is satisfied.
For the second prong of the deceptiveness analysis, we
ask whether consumers are likely to believe that the
misdescription actually describes the goods. Again, we
note applicant’s arguments that U.S. consumers are not
exposed to the European regulatory system which sets forth

4 Indeed, the specimens applicant submitted (displayed infra at
pp. 20-21) depict wines that indicate they originate in the USA.
Serial No. 85009094
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the “AOP” designation for quality and origin of wine.
However, as shown above, U.S. consumers have been exposed
to listings and descriptions of wine that include
designations of origin, including the AOP. Further, the
websites submitted into evidence are widely available to
U.S. consumers, and would likely be perceived by them as
persuasive. This includes, as set forth above, definitions
of “AOP” with translation as “protected designation of
origin,” and numerous online discussions by bloggers and
wine-related websites of “AOP” as being a term defined as a
European and French classification for wines of certain
quality and origin. Since applicant is applying to
register wine in particular, we find that consumers would
believe that applicant’s misdescription describes its
goods.
Finally, we ask whether the misdescription is material
to consumers’ decision to purchase the goods. See In re
Budge, 8 USPQ2d at 1260; In re E5 LLC, 103 USPQ2d at 1583.
We note that with a designation of quality and origin, it
is natural that a substantial proportion of consumers of
wine would be interested in the AOP designation. Indeed,
the foregoing website evidence discussing the significance
of the designation illustrates consumer interest. Thus, we
conclude that use of the AOP designation would affect the
Serial No. 85009094
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purchasing decision. The web evidence set forth above
confirms that bloggers and wine aficionados alike are
keenly aware of the European and French AOP designation,
and consider it to be material to consumers. Further
evidence includes the following:
End of AOC?: France decided to simplify their
system of wine classification . . . . The project
presented to the ministers divides wines in three
categories:
Appellation d’Origine Protégée (AOP) – wine
produced in a traditional way with a strong
respect of terroir.
www.vinaspora.com. Attached to June 19, 2012
Office Action, p.65.

Even applicant appears to tout the use of “an AOP” to
market wines:
Change the way of buying wine. We at AOP LLC,
have developed an AOP: APPELLATION D’ORIGINE
PROTEGEE. A prestigious brand of quality and
identification for the wine industry which also
allows for the consumer to connect with this
brand buy [sic] using an AOP application for the
iPhone. www.aopwine.com. Attached to June 19,
2012 Office Action, p.10.

Accordingly, we find the misdescription to be
material.5
With the three prongs satisfied, we find applicant’s
AOP mark to be deceptive within the meaning of Section

5 As discussed infra, we also affirm, among other things, an
alternative misdescriptiveness refusal under Section 2(e)(1).
Subsumed in our finding that the mark is deceptive is a finding
that it is misdescriptive.

Serial No. 85009094
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2(a).6
Requirement for Further Information
In view of the established meaning of AOP in relation
to wine, the examining attorney required applicant to
“indicate for the record whether applicant’s goods
originate in Europe.” The examining attorney further
required that “[a]pplicant must also indicate whether the
mark indicates a type and/or grade of applicant’s goods,
whether applicant’s goods are of the particular regional
origin or quality established for use of the AOP, and
whether applicant’s goods have been certified to meet the
corresponding standards for this designation by the
appropriate regulatory body.” 37 C.F.R. § 2.61(b).
Applicant, in its September 15, 2011 Response to an earlier
Office Action, responded in an evasive manner, in our view.
As to the geographic origin, applicant stated,
“[a]pplicant’s goods do not necessarily originate in
Europe.” Regarding quality, applicant stated “[a]ll goods
on which Applicant authorizes use of its AOP mark have been
deemed by Applicant to meet its high standards for quality,
craftsmanship, and satisfaction of all applicable rules and

6 Applicant claims, in its September 15, 2011 Response to Office
Action, that it is the “senior user.” Priority of trademark use
cannot overcome a deceptiveness refusal.
Serial No. 85009094
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regulations pertaining to the origin and authenticity of
the wine.”
In the final Office action, dated October 31, 2011,
the examining attorney noted that applicant’s response was
vague and insufficient. Once again, the examining attorney
required applicant to “indicate for the record whether
applicant’s goods originate in Europe” as well as to
indicate “whether the mark AOP indicates a type and/or
grade of applicant’s goods, whether applicant’s goods are
of the particular regional quality established for use of
the AOP by the European Union, and whether applicant’s
goods have been certified to meet the corresponding
standards for this designation by the appropriate European
regulatory body.”
Applicant reiterated in its Request for
Reconsideration dated April 30, 2012, that while
“[a]pplicant’s goods do not all originate in Europe,”
applicant “has no reason to seek certification by a
European regulatory body.”
While applicant does not address this issue in its
brief, the examining attorney maintains that the responses
are “not responsive to the questions posed and are not
sufficiently clear to facilitate a proper examination of
the application.” E. A. Br. p. 28.
Serial No. 85009094
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Failure to comply with a request for information is
grounds for refusal of registration. In re Cheezwhse.com
Inc., 85 USPQ2d 1917, 1919 (TTAB 2008); In re DTI
Partnership LLP, 67 USPQ2d 1699, 1701 (TTAB 2003); TMEP
§ 814. In view of applicant’s equivocal responses (not to
mention its complete silence on this point in its brief),
we find that applicant has not complied with the
requirement for more specific information.
Section 2(e)(1)
We next consider the refusals as to whether
applicant’s mark is merely descriptive, or alternatively
deceptively misdescriptive of its identified goods, under
Section 2(e)(1) of the Trademark Act, 15 U.S.C. §
1052(e)(1). Because applicant has inexcusably failed to
comply with the information requirement, to the extent
there is any ambiguity regarding the origin and
certification of applicant’s goods we address both refusals
in the alternative based on the presumption that had
applicant directly and fully responded to the examining
attorney’s inquiries, the responses would have been
unfavorable. See Cheezswhse.com, 85 USPQ2d at 1919.
Specifically, if applicant’s wines are AOP-certified then
applicant would know this and the use of the term AOP would
be known by applicant to be merely descriptive of the
Serial No. 85009094
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wines, and if the wines are not so certified, then the term
is deceptively misdescriptive, and applicant is presumed to
know this.
A term is merely descriptive if it immediately conveys
knowledge of a quality, feature, function, or
characteristic of the goods or services with which it is
used. See In re Chamber of Commerce of the U.S., 675 F.3d
1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012), citing In re
Gyulay, 820 F.2d 1216, 1217, 3 USPQ2d 1009 (Fed. Cir.
1987). Whether a term is merely descriptive is determined
not in the abstract, but in relation to the goods or
services for which registration is sought, the context in
which it is being used on or in connection with those goods
or services, and the possible significance that the term
would have to the average purchaser of the goods or
services because of the manner of its use. That a term may
have other meanings in different contexts is not
controlling. In re Bright-Crest, Ltd., 204 USPQ 591, 593
(TTAB 1979). Moreover, it is settled that “[t]he question
is not whether someone presented with only the mark could
guess what the goods or services are. Rather, the question
is whether someone who knows what the goods or services are
will understand the mark to convey information about them.”
In re Tower Tech Inc., 64 USPQ2d 1314, 1316-17 (TTAB 2002);
Serial No. 85009094
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See also In re Patent & Trademark Services Inc., 49 USPQ2d
1537 (TTAB 1998); In re Home Builders Association of
Greenville, 18 USPQ2d 1313 (TTAB 1990); and In re American
Greetings Corporation, 226 USPQ 365 (TTAB 1985).
On the other hand, a mark is considered deceptively
misdescriptive if (i) the mark misdescribes a quality,
feature, function, or characteristic of the goods or
services with which it is used; and (ii) consumers would be
likely to believe the misrepresentation. See In re White
Jasmine, 106 USPQ2d at 1394 (applied-for mark refers to
feature of applied-for tea); In re Quady Winery, Inc., 221
USPQ 1213 (TTAB 1984) (applied-for mark refers to feature
of applied-for wine); TMEP § 1209.04.
As set forth above, it is clear from the evidence of
record, as well as from applicant’s own admissions, that
the term “AOP” is an acronym used to refer to “appellation
d’origine protégée,” which translates from French as
“protected designation of origin.”7 See definition and

7 The foreign equivalent of an English word is generally no more
registrable than the English term under the doctrine of foreign
equivalents. See In re Spirits Intl, N.V., 563 F.3d 1347, 90
USPQ2d 1489, 1492 (Fed. Cir. 2009); Palm Bay Imps, Inc. v. Veuve
Clicquot Ponsardin Maison Fondee en 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1696 (Fed. Cir. 2005). We note, however, that we do
not view this case as falling within the doctrine of foreign
equivalents inasmuch as consumers will simply understand the
abbreviation as an indication of origin and quality without
knowing the exact foreign wording from which it is derived or the
translation thereof.
Serial No. 85009094
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translation, supra. It is also clear from the web evidence
that the term is understood by consumers of wine as a
designation used in Europe and in France as a designation
of quality and origin for wine. Indeed, it is inherent in
the term “protected designation of origin” that consumers
would understand it to describe a feature or function of
the “wine” for which applicant seeks registration.
Applicant touts this feature on its website:

The text on the above website reads as follows:
AOP APPELLATION D’ORIGINE PROTEGEE
Wines marketed under our prestigious
international brand AOP APPELLATION D’ORIGINE
PROTEGEE are subject to much tighter controls.
The product label should include an Electronic
stamp: AOP APPELLATION D’ORIGINE PROTEGEE issued
by AOP LLC, which guarantees the origin and
authenticity of the wine. Bottled quantities and
dates of production must also be held in a very
accurate record kept by the producer or supplier.
Serial No. 85009094
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www.aopwine.com. Attached to June 19, 2012
office Action.

As such, applicant is trying to influence consumers
with its own product labeling system under the term “AOP.”
Since, as shown by the evidence of record, the term “AOP”
is known to consumers to describe a European and French
system for indicating the quality and geographic origin of
certain wines, it is likely that consumers would understand
applicant’s use of the term “AOP” to describe that system.
See In re Quady Winery Inc., 221 USPQ at 1214 (“The fact
that there may be a relatively small number of prospective
purchasers who are knowledgeable of the original . . . is
not determinative. Even if the group would not be large,
it is still the proper universe for our consideration.”).
Thus, if applicant’s wine is AOP certified by and under the
European regulatory system, the proposed mark is merely
descriptive of a significant feature of the goods.
Further, if applicant’s wine is not AOP certified by
and under the European regulatory system, the proposed mark
misdescribes a significant feature of applicant’s wine and,
as found above in relation to the Section 2(a) refusal,
consumers would be likely to believe the misrepresentation.
Thus, the proposed mark is, in the alternative, deceptively
misdescriptive of the goods.
Serial No. 85009094
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Specimen Refusal
Finally, we address the refusal on the ground that the
mark fails to function as a trademark, because, as used on
the specimen of record, it is merely informational matter.
Trademark Act Sections 1, 2 and 45, 15 U.S.C. §§ 1051-1052,
1127. Applicant submitted a specimen of use on February 7,
2011, as shown below [displaying AOP on the label]:

Serial No. 85009094
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Upon receiving the refusal to register, applicant
submitted a substitute specimen of use on September 29,
2011, as shown below [again, showing AOP on the label]:

We look to the specimens to see if they convey use as
a mark. Matter that is merely informational is not
registrable as a mark. See In re T.S. Designs, Inc., 95
USPQ2d 1669 (TTAB 2010) (holding CLOTHING FACTS merely
informational and not a source identifier based on likely
consumer perception); In re Volvo Cars of N. America, Inc.,
Serial No. 85009094
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46 USPQ2d 1455 (TTAB 1998) (holding DRIVE SAFELY merely
information and likely perceived a commonplace safety
advice). The question, then, is whether the specimens
submitted show the applied-for mark used in a source-
identifying manner, or rather in a manner that simply
conveys information to the consumer.
In the first submitted specimen, the term “AOP”
appears at the bottom of the label, directly below the
phrase “Product of the USA” and above the phrase “14.7%
ALC/VOL.” Set in the midst of other clearly informational
matter, and far from the mark naming the wine itself, this
use of the term “AOP” does indeed convey nothing more than
information itself and would not likely be perceived as a
mark. In the substitute specimen, the term “AOP” appears
again far from the name of the wine. Again it appears
amongst and between other informational matter, “CELLIER
AOP No. 3” which translates as “Cellar AOP No. 3.”
(www.babylon.com). The other items set forth on this
side of the wine label, clearly separate from the mark
“Julia,” are also informational, with French/English
translations “International wine negotiant” and “New World
Wine/Product of USA.” Indeed, as noted above, applicant
itself refers to its use of “an AOP” as reflecting a
“quality and identification for the wine industry.”
www.aopwine.com. Attached to June 19, 2012 Office Action,
p. 10. Applicant’s website further states, regarding the
AOP term: “The product label should include an ‘Electronic
Serial No. 85009094
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stamp: AOP APPELLATION D’ORIGINE PROTEGEE issued by AOP
LLC, which guarantees the origin and authenticity of the
wine.” Applicant also stated in its September 15, 2011
Response to an earlier Office Action that goods labeled
under its “AOP” designation “have been deemed by Applicant
to meet its high standards for quality, craftsmanship, and
satisfaction of all applicable rules and regulations
pertaining to the origin and authenticity of the wine.”
These excerpts present the term in an informational manner
to inform consumers about a certification process rather
than as a source identifier. In short, it is likely to be
perceived as informational.
We find that consumers of wine would perceive the term
“AOP,” as set forth on both specimens, as being merely
informational and not source-identifying. This refusal is
affirmed as well.

Decision: All of the refusals to register are
affirmed, and registration to applicant is refused.