Capital Brands LLC

Trademark Trial and Appeal Board

Mar 28, 2014

No. 85252748 (T.T.A.B. Mar. 28, 2014)

Oral Hearing Held: February 20, 2014
Decision Mailed: March 28, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
________

In re Capital Brands LLC
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Serial No. 85252748
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Christopher McGeehan, Esq., of McGeehan Technology Law,
Ltd. for Capital Brands LLC.

Richard White, Trademark Examining Attorney, Law Office 109
(Mary I. Sparrow, Managing Attorney).
_______

Before Kuhlke, Taylor, and Wellington,
Administrative Trademark Judges.

Opinion by Wellington, Administrative Trademark Judge:

Capital Brands LLC (applicant) has applied to register
the mark BLU BALLS in standard character form on the
Principal Register for a “prepared alcoholic cocktail” in
International Class 33.1
The Examining Attorney2 has refused registration on the
ground that BLU BALLS merely describes the identified goods

1 Serial No. 85252748, filed February 27, 2011, is based on a
statement of a bona fide intent to use the mark in commerce.
2 Examining attorney Frank J. Lattuca was originally assigned
responsibility for this application. After appeal briefs were
THIS OPINION
IS NOT A PRECEDENT OF
THE TTAB
Serial No. 85252748
2
under Trademark Act Section 2(e)(1), 15 U.S.C. §
1052(e)(1).
Applicant concurrently filed an appeal and a request
for reconsideration. The examining attorney denied the
request for reconsideration; applicant and the Examining
Attorney then filed appeal briefs, including a reply brief
from applicant.
A term is merely descriptive of goods within the
meaning of Section 2(e)(1) if it forthwith conveys an
immediate idea of an ingredient, quality, characteristic,
feature, function, purpose or use of the goods. See, e.g.,
In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1009 (Fed. Cir.
1987); and In re Abcor Development Corp., 588 F.2d 811, 200
USPQ 215, 217-18 (CCPA 1978).
A term need not immediately convey an idea of each and
every specific feature of the applicant’s goods in order to
be considered merely descriptive; it is enough that the
term describes one significant attribute or function of the
goods. See In re MBNA America Bank N.A., 340 F.3d 1328, 67
USPQ2d 1778 (Fed. Cir. 2003) (MONTANA SERIES and
PHILADELPHIA CARD held merely descriptive of credit card
services featuring credit cards depicting scenes or subject

filed, the application was reassigned to Richard White and he
represented the Office at oral hearing.
Serial No. 85252748
3
matter of, or relating to the state of Montana or the city
of Philadelphia); In re Busch Entertainment Corp., 60
USPQ2d 1130 (TTAB 2000) (EGYPT held merely descriptive of
amusement park services; namely an area within an amusement
park). See generally In re H.U.D.D.L.E., 216 USPQ 358, 359
(TTAB 1982); and In re MBAssociates, 180 USPQ 338, 339
(TTAB 1973).
The Examining Attorney argues that BLU BALLS is an
obvious misspelling of “blue balls,” which is a known
alcohol-based drink and “allowing for minor variations, web
sites nearly all agree that a Blue Balls is a shot style
drink featuring Blue Curaco (sic), Sour Mix, Sprite, and
usually Peach Schnapps and Coconut Rum.” Brief at
(unnumbered) p. 7. He contends that the mark is therefore
merely descriptive because “consumers would, presumably, be
familiar with the contents of the drink based on the
immediate conveyance of information the name conveys.” Id.
at p. 2. In support, the examining attorney submitted the
following with the first Office action:3
• Printouts from a “barmano” website (www.barmano.com)
including “recipe instructions for a Blue Balls”
drink. The website indicates the offered recipe was
“created: 11/28/07” and has been “read: 710 times.”
• Printouts from www.shot-cocktail-recipe.com website
providing a “Blue Balls Cocktail Recipe.”

3 Issued on July 25, 2011.
Serial No. 85252748
4
• Printouts from a “1001COCKTAILS” website
(www.1001cocktails.com) identifying a “Blue Balls
Cocktail Recipe” and indicating that it has been
reviewed 24 times.

In each of the three aforementioned websites, the
recipe provided is consistent with the examining attorney’s
description, i.e., blue curacao, coconut rum, peach
schnapps, sweet and sour mix, and lemon-lime soda. The
examining attorney acknowledges that the “barmano” website
contains user-generated content (UGC), but asserts that the
other two websites are either different from or “bears no
resemblance” to a UGC site.4
With the second Office action, the examining attorney
submitted the following:5
• Printouts from the Ehow website (www.ehow.com)
describing “How to Make a Blue Balls Cocktail.”
• Printouts from Wikihow website (www.wikihow.com) with
a recipe, including a video, showing how to make a
Blue Balls cocktail.6
• Printouts from a website www.barnone.com containing a
recipe for a Blue Balls drink consisting of melon
liqueur, vodka, “151 Proof rum,” and orange juice.

4 Although neither applicant nor the examining attorney clearly
defined what constitutes a UGC website, both seem to be in
agreement that certain websites allow for users to submit or
upload information on the website; in this case, the relevant
content is cocktail recipes.
5 Issued on May 16, 2012.
6 The examining attorney acknowledges that this is a user-
generated web (UGC) site, but asserts that the information has
“not been edited for more than a year (March 18, 2011) from the
time it was attached,” pointing to one page that states “Last
edited: March 18, 2011 by Maluniu [user name].”
Serial No. 85252748
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• Printouts from a SlashFood (www.slashfood.com) website
containing a video titled “How to Serve Blue Balls
Cocktail”;
• Printouts from “Your Life After 25” website
(www.yourlifeafter25.com) containing a recipe and
video showing titled “How to Make a Blue Balls
Cocktail.” The video appears to be the same as that
on aforementioned Wikihow website.
• A printout from Yahoo voices website
(www.voices.yahoo.com) with a link to a video titled
“How to Make a Blue Balls Cocktail”; and
• Printouts from a Blue Cocktails blog site
(www.bluecocktails.blogspot.com) containing a recipe
for a “Blue Balls” drink as well as other “Blue-“
formative drinks.

Last, with the Office action denying applicant’s
request for reconsideration, the examining attorney
attached printouts from twelve (12) additional websites,
each showing a recipe for a “Blue Balls” drink.7 On one
website, “The Intoxicologist by Cheri Loughlin,” Ms.
Loughlin offers a recipe for the “Blue Balls Shot” and
describes herself as a “leading cocktail and photography
source for beverage companies, event planners, businesses
and individuals.” The recipes from this and the other
proffered websites are largely consistent in their
ingredient list, calling for blue curacao, coconut rum,
peach schnapps, sweet and sour mix, and lemon-lime soda.

7 Issued on December 5, 2012. The website names or addresses
are: “Good Cocktails.com”; “BAR DUDE”; “Girls Mixing Drinks”;
“BarBug” “Mixed Drink Lab”; “Barman Drinks”; “What to Drink”;
“drinksecret”; “The Intoxicologist by Cheri Loughlin”;
www.tipsybartender.com; “Drink Nation”; and “Drinks Mixer.”
Serial No. 85252748
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Applicant, on the other hand, argues that its proposed
mark BLU BALLS is arbitrary when applied to prepared
alcoholic cocktails. Applicant dismisses the sufficiency
of the evidence submitted by the examining attorney as
lacking in probative value. In particular, applicant
asserts that the examining attorney relies too heavily on
UGC websites and that this type of evidence is unreliable.
Applicant asserts UGC websites are inherently problematic
because users can upload information, such as cocktail
recipes, and “there is no way to assess how many people
share this understanding of a term.” Brief, p. 9
Applicant further contends that UGC internet materials “are
entitled to no weight when attached to a denial of a
request for reconsideration.” Reply Brief, p. 1-2.8
In support of its argument that the proposed mark is
not a recognized name of a cocktail drink, applicant
submitted index pages from Mr. Boston: Official

8 Applicant cites to the Board’s non-precedential decision in In
Re S.V. Spirits, Serial No. 85006865 (TTAB November 28, 2012) to
support its position. Although parties may cite to non-
precedential decisions, the Board does not encourage the
practice. Corporacion Habanos SA v. Rodriguez, 99 USPQ2d 1873,
1875 n.5 (TTAB 2011). See also In re Luxuria s.r.o., 100 USPQ2d
1146, 1151 n.7 (TTAB 2011) (parties may cite to non-precedential
decisions, but they are not binding on the Board and because they
have no precedential effect, the Board generally will not discuss
them in other decisions). We nonetheless note in passing that
the record created by the examining attorney in In re S.V.
Spirits is significantly different from what we have here. Here,
Serial No. 85252748
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Bartender’s Guide (2010), to show the lack of entry for a
drink called “Blue Balls.”9 Applicant also submitted the
declarations of six individuals with varying experience in
the “hospitality and beverage” industry who uniformly aver,
inter alia, that they “have not heard of BLU BALLS being
used as the name of an alcoholic beverage or mixed drink.”10
Three of the declarants have bartending experience; five of
the declarants are located in Rochester, New York, and one
declarant is in Las Vegas, Nevada.
Based on the entirety of the record, we find that
applicant’s mark BLU BALLS is merely descriptive of a
prepared alcoholic cocktail. In coming to this conclusion,
we note there is little argument whether applicant’s mark
is an obvious misspelling of the wording “blue balls.” In
any event, we find the consumers will perceive the BLU
element of applicant’s mark as the phonetic equivalent and
mere novel spelling of the word “blue.” Thus, in its
entirety, applicant’s mark is essentially the equivalent of
“blue balls.”

the examining attorney has submitted considerably more evidence,
i.e., printouts from twice as many websites.
9 Submitted with applicant’s response dated February 27, 2011.
Both the response and materials are attached to the Petition to
Revive Abandoned application (filed April 23, 2012).
10 Attached to Request for Reconsideration, filed on November 16,
2012.
Serial No. 85252748
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As to the evidence and the meaning of “Blue Balls” in
connection with prepared alcoholic cocktails, we find that
the examining attorney has established the necessary prima
facie showing that this term is merely descriptive of the
goods. In all, the examining attorney has attached
printouts from twenty-two different websites where a recipe
for a “Blue Balls” alcoholic cocktail is provided, i.e.,
equal parts of blue curacao, coconut rum, and peach
flavored schnapps; half-part sweet & sour mix, and a dash
of lemon-lime soda. Certain recipes call for specific
brands to use, but are otherwise generally uniform in the
ingredient lists. The fact that there is at least one
video describing how to prepare a “Blue Balls” drink is
also persuasive.
We do not ignore applicant’s arguments concerning the
probative value for websites that contain or allow for
user-generated content (UGC), including its outright
objection to any reliance on UGC website evidence submitted
with the Office action denying the request for
reconsideration. However, while the examining attorney has
acknowledged that certain website evidence apparently
contains UGC, he additionally has submitted evidence from
numerous other websites which have not been shown to
contain UGC, e.g., users submitting their own recipes.
Serial No. 85252748
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Moreover, nearly half of the website printouts were
submitted with the first two Office actions thus allowing
applicant the opportunity to investigate any purported
inconsistent or inaccurate information derived from UGC
websites. In other words, even if we were discount all of
the evidence attached to the last Office action denying the
request for reconsideration, a significant amount of
evidence remains showing “Blue Balls” as the name of a
particular recipe for an alcoholic drink, as understood by
the relevant consumers.
In sum, while we agree there may be problems inherent
with relying solely on UGC websites, we disagree with
applicant in its estimation of the probative value of the
evidence submitted by the examining attorney when
considered in its entirety. That is, we are not dealing
with a record consisting of merely a few UGC websites;
rather, the evidence includes printouts from numerous
websites, not all shown to be UGC, and virtually all
offering the same recipe for a “Blue Balls” alcoholic
cocktail.
We have also considered applicant’s evidence but do
not find it sufficient for purposes of rebutting the
showing made by the Office. The fact that the mark is not
listed in the index to the Mr. Boston book is probative but
Serial No. 85252748
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not dispositive of whether the mark is merely descriptive.
We have long held that merely because a term is not found
in a dictionary or reference source is not controlling if
the examining attorney can show that the term has a well
understood and recognized meaning. See In re Mine Safety
Appliances Co., 66 USPQ2d 1694, 1697 (TTAB 2002); In re
Orleans Wines, Ltd., 196 USPQ 516, 517 (TTAB 1977). We
likewise consider the declarations submitted by applicant
to have some probative value because they show that these
six individuals, with varying experience in the hospitality
or beverage industry, are unaware of a “Blue Balls”
cocktail. However, as the Mr. Boston book makes evident,
there is no shortage of the number and names for recipes of
prepared alcoholic cocktails. It is certainly possible
that these particular individuals are simply unaware of
this cocktail, but this does not mean it does not exist.
While the “Blue Balls” cocktail may not have reached a
popularity level for entry in a cocktail recipe book or to
be known by these declarants located only in the Rochester
and Las Vegas areas, the evidence clearly shows the term
“Blue Balls” used in a significant number of websites, with
each site providing essentially the same recipe for a drink
under that name.
Serial No. 85252748
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Accordingly, we find a prima facie showing has been
established that BLU BALLS, an obvious misspelling of “Blue
Balls,” is merely descriptive of a certain prepared
alcoholic cocktail with known ingredients, and that
applicant’s evidence does not sufficiently rebut this
showing.
Decision: We affirm the refusal under Trademark Act
Section 2(e)(1) on the ground that the mark is merely
descriptive of the identified goods.