Chuan Sin Sdn BhdDownload PDFTrademark Trial and Appeal BoardAug 26, 2014No. 85755819 (T.T.A.B. Aug. 26, 2014) Copy Citation This Opinion is Not a Precedent of the TTAB Mailed: August 26, 2014 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Chuan Sin Sdn Bhd _____ Serial Nos. 85755819 and 857594331 _____ Adam E. Schwartz of Schwartz Intellectual Property Law PLLC, for Chuan Sin Sdn Bhd Bridget Smith, Trademark Examining Attorney, Law Office 115, John Lincoski, Managing Attorney. _____ Before Kuhlke, Mermelstein and Greenbaum, Administrative Trademark Judges. Opinion by Greenbaum, Administrative Trademark Judge: Chuan Sin Sdn Bhd (“Applicant”) seeks registration on the Principal Register of the standard character marks SPRITZER and SPRITZER OSA (OSA disclaimed) for goods ultimately identified as non-carbonated bottled drinking water, mineral water, and spring water in International Class 32.2 1 The Board consolidated the appeals on July 17, 2014 at Applicant’s request. Accordingly, we issue one decision on both appeals. 2 Application Serial Nos. 85755819 and 85759433 were filed on October 19, 2012 and October 21, 2012 respectively, based upon Applicant’s allegation of a bona fide intention to use the marks in commerce under Section 1(b) of the Trademark Act. OSA is a recognized Serial Nos. 85755819 and 85759433 - 2 - The Trademark Examining Attorney has refused registration of Applicant’s proposed marks under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), because they are deceptively misdescriptive of the identified goods. After the Examining Attorney made the refusals final, Applicant appealed to this Board. We affirm the refusals to register. I. Applicable Law Section 2(e)(1) of the Trademark Act prohibits registration of designations that are deceptively misdescriptive of the goods or services to which they are applied. 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. In re White Jasmine, 106 USPQ2d 1385, 1394; In re Phillips-Van Heusen Corp., 63 USPQ2d 1047, 1048 (TTAB 2002); In re Quady Winery, Inc., 221 USPQ 1213, 1214 (TTAB 1984). In addition, “in order for a term to misdescribe goods or services, the term must be merely descriptive, rather than suggestive, of a significant aspect of the goods or services which the goods or services plausibly possess but in fact do not.” Phillips-Van Heusen, 63 USPQ2d at 1051; See also In re Shniberg, 79 USPQ2d 1309, 1312 (TTAB 2006). acronym for the nutritional supplement Orthosilicic Acid, which is an ingredient in Applicant’s goods. See Applicant’s March 22, 2013 Response to Office Action at 2-3 (Serial No. 85759433). Serial Nos. 85755819 and 85759433 - 3 - II. Analysis As noted above, Applicant seeks to register SPRITZER and SPRITZER OSA for “non-carbonated bottled drinking water, mineral water, and spring water.” Applicant and the Examining Attorney agree that “spritzer” is a recognized term that identifies a drink typically made with wine and carbonated water,3 Applicant’s identified goods are not spritzers or carbonated water, and they do not include goods that would be used as ingredients for a spritzer.4 In addition, the record is replete with references to and recipes for spritzers, which are made by combining a form of carbonated water or soda with wine, fruit juice or tea.5 The record also includes evidence of a preassembled fruit juice spritzer consisting of fruit juice and sparkling water, sold in a can.6 None of the record evidence identifies non- carbonated water as an ingredient of a spritzer, and there is no alternative definition of “spritzer” of record. We therefore agree with the Examining Attorney that the term “spritzer,” as used in the proposed marks, misdescribes a significant aspect of Applicant’s goods by indicating that they are carbonated waters that 3 Applicant calls this beverage “the Cocktail” or “spritzer cocktails.” See, e.g., Applicant’s December 24, 2013 Response to Office Action at 5, and Br. at 5. 4 Applicant’s December 24, 2013 Response to Office Action at 4; Ex. Atty. Br. at 6. 5 Both Applicant and the Examining Attorney made these references of record throughout prosecution. 6 See, e.g., May 6, 2013 Office Action at 9-10. Random House Dictionary (2014) posted at Dictionary.com defines “sparkling water” as “soda water,” and “soda water” as “an effervescent beverage consisting of water charged with carbon dioxide.” The Board may take judicial notice of dictionary definitions. In re Red Bull GmbH, 78 USPQ2d 1375, 1378 (TTAB 2006). See also University of Notre Dame du Lac v. J.C. Gourmet Food Imports Co., 213 USPQ 594, 596 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ 505 (Fed. Cir. 1983). Serial Nos. 85755819 and 85759433 - 4 - plausibly could be spritzers or an ingredient for spritzers when they are not, satisfying the first prong of the test for deceptive misdescriptiveness. Turning to the second prong of the test, the Examining Attorney contends that consumers are likely to believe Applicant’s misrepresentations regarding the characteristics and uses of its non-carbonated waters because they are accustomed to seeing the term “spritzer” used to identify a drink consisting of wine or juices and carbonated water. Ex. Atty. Br. at 7. We agree. Based upon the record evidence, consumers will expect, upon encountering SPRITZER and SPRITZER OSA on Applicant’s goods, that the goods will consist of carbonated water that can be used as an ingredient for spritzers. Accordingly, it is clear that the terms SPRITZER and SPRITZER OSA misdescribe water that is flat and not carbonated. Applicant advances four main arguments that the terms SPRITZER and SPRITZER OSA are not misdescriptive when used in connection with non- carbonated waters. First, Applicant argues that SPRITZER and SPRITZER OSA are “suggestive of the provider of a spritz of refreshment” because “spritz” as a verb is defined as “to squirt or spray (something) quickly.” However, the proposed marks are SPRITZER and SPRITZER OSA, not SPRITZ and SPRITZ OSA. The issue of whether SPRITZ or SPRITZ OSA is misdescriptive of non-carbonated waters is not before us. We merely note that even if the words “spritzer” and “spritz” share a common etymologic root,7 they have distinct and specific meanings. Even assuming, arguendo, that “spritz” is suggestive of non-carbonated waters, on this record, we 7 The German word “spritzen” means “spatter, squirt, spray, sprinkle.” See January 26, 2014 Office Action at 2. Serial Nos. 85755819 and 85759433 - 5 - cannot conclude that “spritzer” also is suggestive. Thus, Applicant’s reliance on the definition of “spritz” is misplaced.8 Applicant also likens its proposed marks to well-known marks such as OCEAN SPRAY and SIERRA MIST that evoke the refreshing properties of a beverage rather than literally describing the goods. However, unlike OCEAN SPRAY and SIERRA MIST, the proposed marks SPRITZER and SPRITZER OSA literally describe a drink typically made with carbonated water. Second, Applicant argues that the “the allegedly misdescriptive interpretation is also suggestive rather than (mis)descriptive” (Br. at 4) in that consumers would have to engage in multi-stage reasoning in order to mistakenly conclude that the non-carbonated waters sold under the proposed marks SPRITZER and SPRITZER OSA are in fact carbonated waters or ingredients for spritzers. Id. at 10. Applicant further argues that even if non-carbonated water could be used to make spritzers, such potential use would be minimal when compared to the primary purpose of the goods, namely, hydration and quenching thirst. Id. at 10. However, the undisputed record evidence that “spritzer” is a recognized term defined as a beverage typically made with carbonated water belies these arguments. Third, Applicant argues that “it is highly implausible that a reasonably prudent consumer will misinterpret the Mark[s] as an indicator that the Goods are the Cocktail or its mixers due to the significant differences in the nature, labeling, 8 We also note that “spritz” is defined as a noun meaning “a quick squirt or spray, as of carbonated water.” See March 22, 2013 Response to Office Action at 32. Thus, to the extent the definitions of “spritz” are applicable to this decision, they reinforce the connection with carbonated water. Serial Nos. 85755819 and 85759433 - 6 - regulation and sale of the respective goods.” Id. at 10. The record evidence shows that with the exception of fruit spritzers sold in a can, spritzers usually are made by combining wine, juice or tea and a form of carbonated water or soda. Reasonably prudent consumers would be aware that such ingredients are sold separately. However, there is no evidence that carbonated and non-carbonated waters are sold in separate areas of grocery or convenience stores, and we presume that they are sold in the same aisle, quite possibly side-by-side. The words SPRITZER and SPRITZER OSA that Applicant seeks to register are not removed from the deceptively misdescriptive category if consumers understand their mistake only after close inspection of the goods or determining, presumably by consulting a label, that the goods actually comprise non-carbonated water. See In re Berman Bros. Harlem Furniture Inc., 26 USPQ2d 1514, 1515-16 (TTAB 1993), quoting In re Budge Mfg. Co. 857 F.2d 773, 8 USPQ2d 1259 (Fed. Cir. 1988); Tanners’ Council of America, Inc. v. Samsonite Corp., 204 USPQ 150, 154 (TAB 1979). Finally, Applicant contends that its SPRITZER-branded waters have been sold for over twenty years internationally, with sales in the many millions of bottles. SPRITZER-branded waters are presently sold in at least ten countries worldwide and are the best selling bottled waters in Malaysia. Despite this widespread, longtime use, Applicant is not aware of any reported incident of consumer inquiry or error based on the Cocktail. Br. at 13. This argument is not relevant to our analysis, as the drink known as a “spritzer” in the United States may have a different name in other countries (if it exists in other countries), and even if that is not the case, our concern is not Serial Nos. 85755819 and 85759433 - 7 - whether consumers in Malaysia and other foreign countries would make the association between carbonated waters and spritzers; we are concerned only with whether consumers in the United States would make such an association. For the reasons discussed above, we believe they would, and that they would mistakenly believe the Applicant’s non-carbonated waters are either carbonated waters for use in spritzers, or are, themselves, spritzers. III. Conclusion In sum, we find that the Examining Attorney has established that the terms SPRITZER and SPRITZER OSA misdescribe a significant aspect of Applicant’s goods by representing that they are spritzers or carbonated waters that can be used as an ingredient for a spritzer, when, as stated in the identification, they are not. Given the record evidence showing that “spritzer” is a beverage typically made with wine, juice or tea and some form of carbonated water or soda, reasonably prudent consumers are likely to believe Applicant’s misrepresentation. Decision: The refusals to register Applicant’s marks SPRITZER and SPRITZER OSA are affirmed. Copy with citationCopy as parenthetical citation