Canada Enterprises LLC

Trademark Trial and Appeal Board

Sep 27, 2013

No. 85026331 (T.T.A.B. Sep. 27, 2013)

Mailed:
September 27, 2013

United States Patent and Trademark Office
Trademark Trial and Appeal Board
________
In re Canada Enterprises LLC
________
Serial No. 85026331
_______
Kimberly N. Reddick of Red IP Law PLLC for Canada Enterprises LLC.
David C. Reihner, Trademark Examining Attorney, Law Office 111 (Robert
Lorenzo, Managing Attorney).
_______
Before Bucher, Lykos and Greenbaum, Administrative Trademark Judges.
Opinion by Lykos, Administrative Trademark Judge:
On April 29, 2010, Canada Enterprises LLC (“applicant”) filed an applica-
tion to register on the Principal Register the mark Jin-Ja in standard charac-
ter format for “herbal tea” in International Class 30.1 The application, as
amended, includes the following statement: “The applicant’s goods do contain
ginger.”2

1 Application Serial No. 85026331, filed pursuant to Section 1(a) of the Trademark
Act, alleging October 10, 2009 as the date of first use anywhere and March 30, 2010
as the date of first use in commerce. The application includes the following translation
statement: “The wording ‘Jin-Ja’ has no meaning in a foreign language.”
2 The examining attorney inquired in his first office action whether applicant’s identi-
fied goods contained the ingredient ginger.
This Opinion is Not a
Precedent of the TTAB
Serial No. 85026331

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The Trademark Examining Attorney has refused registration of the mark
under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the
ground that the mark is merely descriptive of applicant’s identified goods. The
case is fully briefed.3 For the reasons discussed herein, the Board reverses the
refusal to register the mark as merely descriptive.
The test for determining whether a mark is merely descriptive is whether
it immediately conveys information concerning a significant quality, character-
istic, function, ingredient, attribute or feature of the product or service in con-
nection with which it is used, or intended to be used. See, e.g., In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012);
In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987). It is not neces-
sary, in order to find a mark merely descriptive, that the mark describe each
feature of the goods or services, only that it describe a single, significant ingre-
dient, quality, characteristic, function, feature, purpose or use of the goods or
services. In re Gyulay, 3 USPQ2d at 1009-10. Whether a term is merely de-
scriptive is determined not in the abstract, but in relation to the goods or ser-
vices for which registration is sought, the context in which it is being used on
or in connection with the 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

3 On May 6, 2013, applicant filed a duplicate copy of its appeal brief originally filed on
May 3 with evidence submitted during ex parte prosecution appended thereto. The re-
submission of evidence with applicant’s appeal brief was unnecessary.
Serial No. 85026331

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contexts is not controlling. In re Bright-Crest, Ltd., 204 USPQ 591 (TTAB
1979).
Applicant has admitted that the goods identified in the application, “herbal
tea,” contain ginger as a significant ingredient. See February 8, 2012 Office
Action. As such, “ginger” is merely descriptive of the identified goods. See In re
Gyulay, 3 USPQ2d at 1009-10. The key issue in this appeal, therefore, is
whether applicant’s applied-for mark Jin-Ja will be perceived by prospective
consumers as a novel or mere misspelling of the phonetic equivalent of the de-
scriptive word “ginger.”
It is well established that the novel spelling of a mark that is the phonetic
equivalent of a merely descriptive word or term is also merely descriptive if
purchasers would perceive the different spelling as the equivalent of the de-
scriptive word or term. See In re Hercules Fasteners, Inc., 203 F.2d 753, 97
USPQ 355 (CCPA 1953) (holding “FASTIE,” phonetic spelling of “fast tie,”
merely descriptive of tube sealing machines). In other words, as articulated in
prior cases, a slight misspelling of a word will not turn a descriptive or generic
word into a non-descriptive mark. See In re ING Direct Bancorp., 100 USPQ2d
1681, 1690 (TTAB 2011) (holding PERSON2PERSON PAYMENT generic for
direct electronic funds transfers including electronic payment services between
individuals); In re Carlson, 91 USPQ2d 1198, 1203 (TTAB 2009) (holding
URBANHOUZING, in standard character form, would be perceived by con-
sumers as the equivalent of the descriptive term URBAN HOUSING, rather
Serial No. 85026331

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than as including the separate word ZING); In re Ginc UK Ltd., 90 USPQ2d
1472, 1475 (TTAB 2007) ("The generic meaning of “togs” not overcome by the
misspelling of the term as TOGGS. . ."); In re Hubbard Milling Co., 6 USPQ2d
1239 (TTAB 1987) (holding MINERAL-LYX generic for mineral licks for feed-
ing livestock).
Applicant argues that U.S. consumers would not recognize or pronounce
the mark Jin-Ja as “ginger.” Rather, as applicant contends, the mark Jin-Ja is
an arbitrary term with no recognizable meaning in the English language. Ap-
plicant further contends that the word “Jinja,” spelled without a hyphen, iden-
tifies a remote geographic location in the country of Uganda, citing to diction-
ary definitions of that term. Applicant maintains that the hyphenation in its
mark serves as a play on the Japanese word “ninja” because although appli-
cant’s tea elixir may appear “soothing,” when tasted “the spicy flavor sneaks
up and packs a powerful punch ” (Applicant’s Brief, p. 5), or alternatively sug-
gesting to prospective consumers that applicant’s herbal teas contain ginseng.
Applicant also argues that Jin-Ja is not the phonetic equivalent of “ginger” in-
sofar as the correct pronunciation of the word “ginger” is \’jin-jэr\, according
to definitions obtained from Merriam-Webster’s Dictionary, Dictionary.com,
American Heritage and Oxford Advanced American Dictionary, and none of the
dictionaries offer \’jin-jah\ as an alternative pronunciation. Applicant further
contends that while there is evidence that the British pronunciation of “ginger”
may be “\’jin-jah\,” there is no evidence regarding the U.S. pronunciation.
Serial No. 85026331

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The examining attorney, however, maintains that applicant’s mark Jin-Ja
is the phonetic equivalent of the word “ginger.” In support thereof, the examin-
ing attorney has submitted an excerpt from Wikipedia entitled “Rhotic and
non-rhotic accents” discussing the distinction between two main accent groups
in the English language: rhotic speakers who pronounce the letter “r” as /r/
when it appears in all positions in a word versus non-rhotic speakers who pro-
nounce the letter “r” only if it is followed by a vowel sound in the same phrase
or prosodic unit. As explained further in the Wikipedia excerpt:4 “Non-rhotic
speakers pronounce an /r/ in red, and most pronounce it in torrid and watery,
where R is followed by a vowel, but not in hard or car or water when those
words are said in isolation.” The Wikipedia excerpt goes on to identify the geo-
graphic origin of non-rhotic speakers in the United States, such as portions of
the South, New England and New York. See August 2, 2011 Office Action. The
examining attorney also relies on Internet search engine results, an excerpt
entitled “Rhotic” obtained from the Australian website Kids.Net.Au, as well as
an excerpt from an interview with the creator of applicant’s product discussing
the origin of the name as the British pronunciation of the word “ginger” as “jin-
ja.” See “Counter Culture: Reuben Canada, Creator of Jin-Ja” at
www.loop21.com (February 8, 2012 Office Action). As the examining attorney
contends:

4 This excerpt from Wikipedia was quoted in part in the Yahoo! India Answers excerpt
also made of record by the examining attorney with the August 2, 2011 Office Action.
Serial No. 85026331

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Rhotic speakers pronounce the letter “r” where it is located in a
word; however, non-rhotic speakers do not pronounce the final let-
ter “r” in a word or the letter “r” in a word, when not followed by a
vowel sound. For example, a non-rhotic speaker would pronounce
the word “car” as “ca:” or “caah” and “baker” would be pronounced
as “bakah” and “hard” would be pronounced as “ha:d” or “haad”.
Non-rhotic speakers may be found in the southern United States,
New York City, Boston, and New England. Why is this information
important? It shows that some people in the United States are
non-rhotic speakers, who would pronounce “car” as “caah” and
“baker” as “bakah.” They would probably also pronounce “ginger”
as “jin’jah” or “jin’ja.” Even rhotic speakers in the United States
would not be unaccustomed to hearing the word “caah” and under-
stand that it means “car” or hear “bakah” and understand that it
means “baker” or hear “jin’jah” or “jin’ja” and understand that it
means “ginger.”

Examining Attorney’s Brief, unnumbered pp. 6-7. Lastly, the examining attor-
ney points to evidence obtained from third-party Internet sites discussing ap-
plicant’s herbal tea as evidence of “applicant’s derivation of its mark and prop-
agation of the idea that the designation Jin-Ja is derived from the word gin-
ger” and that applicant’s mark is used in close association with the ingredient
of ginger in applicant’s herbal tea. Id. at 7-8.
Applicant, however, is critical of the examining attorney’s reliance on the
excerpt from Wikipedia, pointing out that the article does not provide evidence
regarding how many U.S. citizens actually speak with a non-rhotic accent. Ap-
plicant further contends that the examining attorney did not provide any cor-
roborating evidence from reliable sources to show widespread use of the non-
rhotic accent. In addition, applicant urges the Board to give no weight to the
evidence submitted by the examining attorney consisting of Internet search
engine results because the overall context was omitted.
Serial No. 85026331

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We find that the examining attorney's evidence falls short of establishing
that the term Jin-Ja is merely descriptive of applicant's goods. Based on the
record before us, we are not persuaded that U.S. consumers are likely to per-
ceive the mark Jin-Ja as a novel spelling or misspelling of the word “ginger,”
or even pronounce the mark in non-rhotic fashion as “ginjaah.” While we have
considered the evidence submitted by the examining attorney from Wikipedia
because applicant had the opportunity to rebut such evidence, we find this evi-
dence to be of limited probative value. As we have stated previously, evidence
procured from Wikipedia, without credible and reliable corroborating evidence,
is fraught with shortcomings:
Our consideration of Wikipedia evidence is with the recognition of
the limitations inherent with Wikipedia (e.g., that anyone can edit
it and submit intentionally false or erroneous information). In this
case, applicant submitted the Wikipedia information for “Internet
Service Provider” in its requests for reconsideration, and the exam-
ining attorney had an opportunity to rebut that evidence if she be-
lieved that the entry was incorrect. Accordingly, we have consid-
ered the Wikipedia entry.

As a collaborative online encyclopedia, Wikipedia is a secondary
source of information or a compilation based on other sources. As
recommended by the editors of Wikipedia, the information in a
particular article should be corroborated. The better practice with
respect to Wikipedia evidence is to corroborate the information
with other reliable sources, including Wikipedia's sources.

In re IP Carrier Consulting Group, 84 USPQ2d 1028, 1032-3 (TTAB 2007)

In this instance, the examining attorney attempted to corroborate the phe-
nomena of the non-rhotic U.S. speaker as described in Wikipedia with an an-
swer from a Yahoo! India query consisting of a reprinted portion of the excerpt
Serial No. 85026331

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from Wikipedia, an excerpt from an Australian children’s encyclopedia web-
site, an example from a U.S. website of the British pronunciation of the word
“ginger,” and Internet search engine results. This evidence does not serve to
substantiate the examining attorney’s determination. It is well established
that Internet search engine results submitted without the surrounding context
are of limited probative value. See In re Bayer Aktiengesellschaft, 488 F.3d 960,
82 USPQ2d 1828, 1833 (Fed. Cir. 2007) (“Search engine results – which pro-
vide little context to discern how a term is actually used on the web page that
can be accessed through the search result link – may be insufficient to deter-
mine the nature of the use of a term or the relevance of the search results to
registration considerations”). See also In re Thomas Nelson, Inc., 97 USPQ2d
1712, 1715 (TTAB 2011) (search engine results submitted by examining attor-
ney not considered because they did not provide sufficient context to have any
probative value). In addition, while evidence obtained from foreign sources
may have some probative value depending on the circumstances of the particu-
lar case, in this instance, they do not since what is critical is determining how
the U.S. consumer will perceive and pronounce applicant’s mark. Compare In
re International Business Machines Corp., 81 USPQ2d 1677, 1681 n.7 (TTAB
2006) (web page from foreign source considered because case involved comput-
er technology, and “it is reasonable to consider a relevant article regarding
computer hardware” from an English-language website from another country);
In re Remacle, 66 USPQ2d 1222, 1224 n.5 (TTAB 2002) (professionals in medi-
Serial No. 85026331

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cine, engineering, computers, telecommunications and other fields are likely to
utilize all available resources, regardless of country of origin or medium, and
the Internet is a resource that is widely available to these same professionals
and to the general public in the United States). As to the Internet articles and
print-outs discussing applicant’s particular brand of herbal tea, such evidence
does not suffice to carry the examining attorney’s burden of establishing that
prospective consumers encountering applicant’s herbal tea will perceive Jin-
Ja as a misspelling or phonetic equivalent of “ginger.” More persuasive would
have been evidence obtained from U.S. sources showing use of the non-rhotic
accent in the United States for either the word “ginger” or other words ending
with the suffix “-er.”
The burden is on the USPTO to make a prima facie showing that the mark
or word in question is merely descriptive from the vantage point of purchasers
of an applicant's goods. See In re Box Solutions Corp., 79 USPQ2d 1253, 1255
(TTAB 2006), citing In re Merrill Lynch, Pierce, Fenner, and Smith, Inc., 828
F.2d 1567, 4 USPQ2d 1141, 1144 (Fed. Cir. 1987). We further add that “[w]hen
doubts exist as to whether a term is descriptive as applied to the goods or ser-
vices for which registration is sought, it is the practice of this Board to resolve
doubts in favor of the applicant and pass the mark to publication with the
knowledge that a competitor of applicant can come forth and initiate an oppo-
sition proceeding in which a more complete record can be established.” In re
The Stroh Brewery Co., 34 USPQ2d 1796, 1797 (TTAB 1994). Therefore, based
Serial No. 85026331

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on the record submitted, we find that the Office has not met its burden of proof
that applicant’s mark, Jin-Ja, when used in connection with the identified
goods, is merely descriptive.
Decision: The refusal to register applicant’s mark as merely descriptive
under Section 2(e)(1) of the Trademark Act is reversed.
- o O o -
Opinion by Bucher, Administrative Trademark Judge, dissenting:
Upon close review of the instant record, I agree with the examining attor-
ney that this term should be refused registration as merely descriptive under
Section 2(e)(1) of the Trademark Act.
My colleagues in the majority agree that the word “ginger” is highly de-
scriptive for applicant’s beverage. Applicant touts “fresh ginger” as the first
ingredient while often mentioning the many and varied health benefits of gin-
ger. Hence, where I disagree with my colleagues is on the question of whether
the term “Jin-Ja” immediately conveys information about the most important
ingredient of this drink, namely “ginger.” I have no doubt.
(1) Applicant’s prior statements
In 2010, applicant’s Philadelphia-based CEO and alter ego, Reuben Can-
ada, left behind what he described as the safe and secure life of an intellectual
property litigator to pursue his adventure of the heart – creating and market-
ing his “Jin-Ja” herbal beverage. The record contains a copy of the transcript of
an interview with Mr. Canada that the examining attorney took from the
Serial No. 8

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Serial No. 85026331

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would any good IP attorney (irrespective of the identity of the client), he allud-
ed to having to think of the appearance, sound and meaning of the adopted
term. As shown in the Loop21 interview, he described for Danielle Hester in
explicit detail the momentary epiphany he had at the end of this laborious
naming process. Yet curiously, the single best clue in the entire record about
“What does Jin-Ja mean?” simply disappeared from the Loop21 website some-
time after Examining Attorney Reihner issued his Office action of February
2012.
Furthermore, under the heading of actions taken by applicant, more than
three years ago, Mr. Canada reinforced this direct association when discussing
his recipe for an “aptly-titled” gin cocktail featuring his “Jin-Ja” cocktail mixer,
the “Jin-Ja Rogers.”
Given this admitted equivalence, I disagree with the majority’s conclusion,
supra at 9, that the examining attorney nonetheless should have been tasked
with showing that other competitors have adopted or used this precise desig-
nation in connection with a ginger-flavored herbal beverage. We routinely
state the principle that when the involved term is the phonetic equivalent of a
descriptive or generic designation, it matters not to the application of this
statutory subsection that applicant may be the first or only person in the field
to have used that letter string.

Serial No. 85026331

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(2) Blogger’s notation
The examining attorney included screen prints of another website featur-
ing a “Philly Homegrown” food blog. From a short blurb introducing applicant’s
“non-alcoholic beverage,” it appears that this Philly writer immediately made
the connection between the term “Jin-Ja” and the especially important ingre-
dient, ginger (“get it, “jin-ja”):
7

7 http://food.visitphilly.com/maker-producer
Serial No. 85026331

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(3) Persistent imagery of ginger flowers presented with alleged mark
Although applicant’s ginger ingredients would come from the rhizome por-
tion of the plant Zingiber officinale, applicant’s tags (attached to the neck of a
potion bottle with a cork from a wine supply site and sealed with purple wax)
have from day-one featured the image of a red flo-
ral spike representing a tropical plant usually as-
sociated with southeast Asia. These images be-
came even more prominent on later bottle labels
and website pages, and as shown in pictures of
poster-sized exhibits. The pictorial motifs, along with applicant’s occasional
public presentation of an actual vase of live, exotic-looking ginger canes and
flowers, serves to reinforce the “ginger” component of these goods.
(4) A “Philly Accent”?
The examining attorney also included a lot of discussion about “non-rhotic”
speakers (see citation from the examining attorney’s appeal brief reproduced in
the majority opinion at 6). In response, applicant argues, in effect, that the ex-
amining attorney’s focus on “non-rhotic” speakers and the possible existence of
a Philly accent is not relevant to this proceeding. However, non-rhoticity is not
limited to the United Kingdom, New England, New York or the southern part
of the United States. The specific focus in the case at bar is on applicant’s
home area – the environs of Philadelphia, Pennsylvania.
Serial No. 85026331

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Even before he had bottles and labels, Canada placed small quantities of
his product in a gourmet market across the street from his apartment, followed
quickly by increased production and growing availability of the Jin-Ja product
in other local cafes, grocery stores and markets in South Philly.8 In this section
of town, if one is alert to the ethnolect of South Philly, one might overhear in
the local patois a “venduh” offering “dolluhs” for the “oppahtunity” to place his
beverage on the end of the “pahty” aisle. And of course in this same metro ar-
ea, non-rhoticity is not limited to South Philadelphia. Linguistic studies show
that a definite “Philly accent” (among a larger “Mid-Atlantic Dialect”) is found
among generations of families who grew up north of Philadelphia on the Main-
line and routinely sent their children to boarding schools in the United King-
dom. One might think immediately of current well-known television personali-
ties like Jim Cramer or Chris Matthews.
Perhaps it is no surprise then that applicant’s market expanded naturally
from South Philly and the Mainline9 to a much larger area of distribution

8 The establishments include Pumpkin Café, Restaurant and Market; Cichetteria 19;
Green Aisle Grocery; Bacchus; Almanac Market; Essene Market and Café; Di Bruno
Bros.; Food and Friends; Neighborhood Market, the Dandelion and Tashan restau-
rants, etc., having addresses on South St., Spruce St., Poplar St., and additional loca-
tions around Rittenhouse Square. See Attachment to outgoing Office Action of Janu-
ary 20, 2011, Attachment #3, p4; Attachment to outgoing Office Action of February 8,
2012, Attachment #28 at p. 30, Attachment #31 at p.33; Attachment #41 at p. 42;
“Jin-Ja: A healthful tonic of ginger, citrus and spice that tastes great alone or with a
shot of Maker’s Mark,” http://food.visitphilly.com/jin-ja/, Attachment #26 at p. 27.
9 Outlets such as one applicant secured in Manayunk.
Serial No. 85026331

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through Whole Foods franchisees in the Mid-Atlantic region.10 Many of the rel-
evant customers in this trading area – stretching from New York to New Jer-
sey to Philly and Baltimore – upon first seeing “Jin-Ja” on a ginger beverage
will immediately “get it,” without need for the written equivalent of a nudge, a
wink or an elbow in the ribs as memorialized by the Philly blog writer cited
above.11
5. Items 1, 2 and 3 above comprise a prima facie case
In short, I find that from the admission against interest by Mr. Canada,
and clear understandings reflected in the work of bloggers, from applicant’s
and third-parties’ websites to additional evidence most certainly reviewed by
the examining attorney (e.g., a third-party registrant who adopted the term
JINJA in July 2002 provided a translation that “The English translation for
the word ‘JINJA’ is ‘ginger”),12 combined provide sufficient credible and relia-
ble evidence to make out a prima facie case that § 2(e)(1) stands as a bar to the
registration of this term. In this sense, even if one concedes that the examining
attorney’s entire discussion of the linguistics and phonetics of “non-rhotic”
speakers suffers from the inherent weakness of reliance on Wiki documents,

10 Attachment to outgoing Office Action of February 8, 2012, Attachment #28, p. 29,
“His food product took off, with help,” by Dianna Marder,
http://articles.philly.com/2012-01-26/food/30666967_1.
11 While I do not rely on any foreign websites placed into the record by the examining
attorney, query whether questions of etymology, phonology and international phonet-
ics are really that different from the topics given some Board imprimatur in cases
such as In re Remacle, 66 USPQ2d at 1224 n.5?
12 Registration No. 2670215 issued on December 31, 2002; renewed.
Serial No. 85026331

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these citations simply corroborate applicant’s admissions and third-party uses
placed into the record by the examining attorney.
6. Practical tips for the examining corps?
Examining attorneys cannot produce expert witnesses. These professionals
who are on production cannot take valid and probative surveys to nail down
“Philly speak” for the word “ginger.” Yet where an issue such as regional pro-
nunciations comes into play, the challenge of making a prima facie case is a
critical part of the assignment.
So perhaps as hundreds of very capable attorneys in the examining corps
scratch their collective heads, trying to draw out “lessons-learned” from this
reversal, a creative and efficient possibility might well have been to provide
applicant and this Board with hyperlinks to online video clips – such as one
where well-known MSNBC television commentator, Chris Matthews (who in-
cidentally, likes to discuss on-air his “Philly accent”), towards the end of a four-
minute segment, refers three times to EPIC’s Ginger McCall as “\’jin-jah\.”13

13 http://videocafe.crooksandliars.com/heather/matthews-accuses-epics-mccall-
slandering. By the way, this tip pointing to evidence of the spoken dialect, inter alia,
was not included in the record before us.