Chuan Sin Sdn Bhd

Trademark Trial and Appeal Board

Aug 26, 2014

No. 85755819 (T.T.A.B. Aug. 26, 2014)

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
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Serial Nos. 85755819 and 857594331
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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
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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
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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
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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.
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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
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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
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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.