Empire Tech. Dev. LLC

Trademark Trial and Appeal Board

Aug 3, 2017

No. 85876688 (T.T.A.B. Aug. 3, 2017)

This Opinion is a
Precedent of the TTAB

Hearing: May 11, 2017 Mailed: August 3, 2017

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re Empire Tech. Dev. LLC
_____

Serial No. 85876688
_____

Everett E. Fruehling of Christensen O’Connor Johnson Kindness PLLC for Empire
Technology Development LLC.

Yatsye I. Lee, Trademark Examining Attorney, Law Office 107,
J. Leslie Bishop, Managing Attorney.
_____

Before Wellington, Shaw, and Larkin,
Administrative Trademark Judges.

Opinion by Larkin, Administrative Trademark Judge:
Empire Technology Development LLC, successor-in-interest by assignment from
the original applicant, Invention Development Management Company, LLC
(“Applicant”),1 seeks registration on the Supplemental Register of the proposed mark
COFFEE FLOUR in standard characters for “flour made by processing and blending

1 This application was assigned to Empire Technology Development LLC by an assignment
recorded in the Patent and Trademark Office on June 20, 2017 under Reel/Frame 6087/0373.
Because the assignment occurred after the briefing and oral hearing on this appeal, all
references to “Applicant” in this opinion are to the original applicant and assignor.
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together coffee cherry skins, pulp, and pectin for use, alone or in combination with
other plant and milk based products, as a dry ingredient in food and beverage
products for consumer use,” in International Class 30.2
The Trademark Examining Attorney has refused registration of the proposed
mark on the Supplemental Register under Section 23(c) of the Trademark Act, 15
U.S.C. § 1091(c), on the ground that the proposed mark is a generic name for the
identified goods, and is thus incapable of distinguishing Applicant’s goods. After the
Examining Attorney made the refusal final, Applicant timely appealed and requested
reconsideration, which was denied. Applicant and the Examining Attorney have filed
briefs, and counsel for Applicant and the Examining Attorney appeared at an oral
hearing before the panel on May 11, 2017. We affirm the refusal to register.
I. Prosecution History and Record on Appeal
Applicant initially sought registration of its proposed mark on the Principal
Register for “processed coffee cherry skins, pulp, and pectin for use, alone or in
combination with other plant and milk based products, as an ingredient in food and
beverage products.” The Examining Attorney issued a first Office Action refusing
registration under Section 2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e), on the
ground that the proposed mark was merely descriptive of the identified goods.3 The

2 Application Serial No. 85876688 was filed on March 14, 2013 under Section 1(b) of the
Trademark Act, 15 U.S.C. § 1051(b), on the basis of Applicant’s allegation of a bona fide
intention to use the proposed mark in commerce. As discussed below, the application was
amended during prosecution to allege use of the mark in commerce under Section 1(a) of the
Trademark Act, 15 U.S.C. § 1051(a).
3 June 25, 2013 Office Action.
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Examining Attorney made of record dictionary definitions of the words “coffee” and
“flour.” She also requested additional product information about, and a detailed
description of, Applicant’s goods.
Applicant responded by traversing the refusal to register and making of record
a Product Specification and Technical Data Sheet for its goods, as well as Internet
evidence regarding the production of coffee.4 Applicant simultaneously filed an
Amendment to Allege Use claiming first use of its proposed mark in April 2012 and
first use of its proposed mark in commerce in June 2013, supported by a specimen of
use.
The Examining Attorney issued a second Office Action in which she accepted
Applicant’s Amendment to Allege Use, maintained and continued the descriptiveness
refusal, and issued a second information request requiring Applicant to answer
specific questions about the nature, composition, and intended use of its goods, and
the significance of the word FLOUR in the proposed mark.5 Applicant responded to
the information request by stating, among other things, that the word FLOUR in the
proposed mark “suggests the consistency of the product and its ability to be used in
baking and/or incorporation as an ingredient in other products.”6
The Examining Attorney issued a third Office Action maintaining and continuing
the descriptiveness refusal, requiring Applicant to clarify its identification of goods,

4 December 24, 2013 Response to Office Action.
5 January 22, 2014 Office Action.
6 July 22, 2014 Response to Office Action at 1.
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and noting that the proposed mark appeared to be generic for the identified goods.7
The Examining Attorney made of record pages from a Wikipedia entry regarding
coffee beans and pages from Applicant’s website at coffeeflour.com describing
Applicant’s goods.
Applicant responded to the third Office Action by amending the identification of
its goods to “processed coffee cherry skins, pulp, and pectin blended together for use,
alone or in combination with other plant and milk based products, as a dry ingredient
in food and beverage products for consumer use,” and amending its application to
seek registration on the Supplemental Register.8
The Examining Attorney issued a fourth Office Action continuing the requirement
that Applicant clarify its identification of goods and refusing registration on the
Supplemental Register under Section 23(c) of the Trademark Act, 15 U.S.C. § 1091(c),
on the ground that Applicant’s proposed mark is a generic term for the goods.9 The
Examining Attorney made of record Internet evidence that she claims shows that
third parties use the proposed mark to refer to flour made from coffee cherries, as
well as Applicant’s published patent application No. US14/364,925, which seeks a
United States patent for a “Process for obtaining honey and/or flour of coffee from the
pulp or husk and the mucilage of the coffee bean.”10 The Summary and Background

7 August 13, 2014 Office Action.
8 February 13, 2015 Response to Office Action.
9 March 14, 2015 Office Action.
10 In its appeal brief, Applicant acknowledges ownership of this application. 13 TTABVUE
11. The record does not show that a patent has issued.
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portions of the patent application explain in detail the historical dispositions of the
“sub-products” of coffee production (the mucilage, and the pulp (or husk) surrounding
the coffee bean), as well as the claimed inventions for obtaining “coffee honey” and
“coffee flour” from these sub-products. Two days later, the Examining Attorney issued
a fifth Office Action superseding the fourth Office Action and continuing the refusal
to register the mark on the Supplemental Register and the refusal based upon the
indefiniteness of the identification of goods.11 The Examining Attorney made of record
additional pages from Applicant’s website.
Applicant responded to the fifth Office Action by traversing the refusal to register
on the Supplemental Register.12 Applicant made of record pages from the Patent and
Trademark Office’s TSDR database regarding its Registration No. 480648713 on the
Principal Register for the mark shown below

and its pending application Serial No. 8600129314 to register the mark shown below

11 In continuing the indefiniteness refusal, the Examining Attorney advised Applicant that
its goods “must be clarified because applicant fails to use the common commercial name for
the goods, i.e. flour” and because “the goods are in fact a type of flour made from processed
coffee cherry products.” The Examining Attorney suggested the identification language that
Applicant ultimately adopted.
12 September 14, 2015 Response to Office Action.
13 Issued on September 8, 2015. The mark is described as “consist[ing] of stylized letters
forming the words ‘COFFEE FLOUR’ where the letter ‘O’ in the word ‘COFFEE’ is in the
shape of a stylized coffee cherry.”
14 Published for opposition on September 8, 2015. Applicant argues in its brief that this
application has matured into Registration No. 4876584, 13 TTABVUE 12, but that
registration is not in the record.
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both containing disclaimers of the words “coffee flour” and covering “flour made by
processing and blending together coffee cherry skins, pulp, and pectin for use, alone
or in combination with other plant and milk based products, as a dry ingredient in
food and beverage products for consumer use.” Applicant also amended its
identification of goods to match its other applications to read “flour made by
processing and blending together coffee sherry skins, pulp, and pectin for use, alone
or in combination with other plant and milk based products, as a dry ingredient in
food and beverages for consumer use.”
The Examining Attorney issued a sixth Office Action accepting Applicant’s
amendment to its identification of goods,15 and making final the refusal to register on
the Supplemental Register.16 The Examining Attorney made of record additional
Internet webpages regarding Applicant’s product, additional dictionary definitions of
“coffee” and “flour,” pages from the website of the National Coffee Association
answering the question “What is Coffee?,” additional pages from Applicant’s website,
and pages from third-party websites regarding various types of grain-free flours.
Applicant then filed a Notice of Appeal and a Request for Reconsideration. 4
TTABVUE. In its Request for Reconsideration, Applicant made of record a press
release issued jointly with Sprouts Farmers Market about a partnership with

15 The amendment misspelled “cherry” as “sherry.” The Examining Attorney noted and
corrected this typographical error in the sixth Office Action.
16 October 15, 2015 Office Action.
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Applicant, articles from several websites discussing Applicant’s product, a letter from
the U.S. Customs and Border Protection division of the Department of Homeland
Security to Applicant’s customs agent in response to a request for a tariff clarification
ruling for Applicant’s product,17 a definition of the word “genus” from A Dictionary of
Modern Legal Usage, a Material Safety Data Sheet regarding Applicant’s product,
and a three-minute promotional video regarding its new product.
The Examining Attorney denied the Request for Reconsideration, 5-9 TTABVUE,
making of record additional webpages regarding grain-free flours identified by the
use of the word “flour” together with the name of the source plant, nut, or fruit from
which the flour is produced.
II. Analysis of Genericness Refusal
“In order to qualify for registration on the Supplemental Register, a proposed
mark ‘must be capable of distinguishing the applicant’s goods or services.’” In re
Emergency Alert Sols. Grp., LLC, 122 USPQ2d 1088, 1089 (TTAB 2017) (quoting 15
U.S.C. § 1091(c)). “Generic terms do not so qualify.” Id.; see also Clairol, Inc. v. Roux
Distrib. Co., 280 F.2d 863, 126 USPQ 397, 398 (CCPA 1960) (“The generic name by
which a product is known is not a mark which can be registered on the Supplemental
Register under section 23 because such a name is incapable of distinguishing
applicant’s goods from goods of the same name manufactured or sold by others.”)

17 Applicant’s product was classified as falling under Subheading 0901.90.1000 of the
Harmonized Tariff Schedule of the United States, which is described in the classification
ruling and under Foreign Trade Schedule B of the U.S. Census Bureau, which Applicant also
made of record, as covering “Coffee husks and skins.” April 14, 2016 Request for
Reconsideration at 9-10, 23-24.
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“A generic term ‘is the common descriptive name of a class of goods or services.’”
Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 114 USPQ2d 1827,
1830 (Fed. Cir. 2015) (quoting H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc.,
782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986)). The test for determining whether
a proposed mark is generic is its primary significance to the relevant public.
Emergency Alert, 122 USPQ2d at 1089 (citing In re Am. Fertility Soc’y, 188 F.3d 1341,
51 USPQ2d 1832, 1837 (Fed. Cir. 1999)). “Making this determination ‘involves a two-
step inquiry: First, what is the genus of goods or services at issue? Second, is the term
sought to be registered . . . understood by the relevant public primarily to refer to that
genus of goods or services?’” Id. (quoting Marvin Ginn, 228 USPQ at 530).
The Examining Attorney must demonstrate that COFFEE FLOUR is generic by
“clear evidence” of generic use. In re Hotels.com, L.P., 573 F.3d 1300, 87 USPQ2d
1100, 1104 (Fed. Cir. 2009); Emergency Alert, 122 USPQ2d at 1830 (citing cases).
A. The Genus of Goods
“[O]ur first task is to determine, based upon the evidence of record, the genus of
Applicant’s goods . . . .” In re ActiveVideo Networks, Inc., 111 USPQ2d 1581, 1600
(TTAB 2014). The genus of goods is often defined by the identification in the subject
application, see In re Meridian Rack & Pinion, 114 USPQ2d 1462, 1463 (TTAB 2015);
In re Cordua Rests., Inc., 823 F.3d 594, 118 USPQ2d 1632, 1636 (Fed. Cir. 2016), but
we may also “consider evidence provided from Applicant’s website and press releases,
from third-party websites, and from dictionaries, newspaper articles and other such
sources.” ActiveVideo, 111 USPQ2d at 1600.
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Defining the genus “is not an end in itself, but a means towards determining
whether a term is generic, i.e., whether consumers understand the term at issue as
primarily referring to the goods or services (rather than to the source).” Id. at 1602
n.77. “Sometimes an applicant’s description of goods/services is simple and clear
enough that it may be used verbatim as the ‘genus.’ Other times, as in this case,
distillation of a complicated or lengthy description of goods/services into a clear, more
succinct ‘genus’ greatly facilitates the determination of whether a term is generic.”
Id.
The Examining Attorney argues that Applicant’s entire identification of goods in
the application, namely, “flour made by processing and blending together coffee
cherry skins, pulp, and pectin for use, alone or in combination with other plant and
milk based products, as a dry ingredient in food and beverage products for consumer
use,” adequately defines the genus of Applicant’s goods. 15 TTABVUE 6.
Applicant argues that the “evidence of record shows that the genus, or major class
or kind, of the goods in question is not COFFEE FLOUR.” 13 TTABVUE 11. This
argument improperly conflates the first Marvin Ginn inquiry—defining the genus of
Applicant’s goods—with the second inquiry—determining whether COFFEE FLOUR
primarily refers to that genus. In its argument regarding the lack of a competitive
need to use COFFEE FLOUR as a generic term, however, Applicant states that
“consumers are not likely to come to the conclusion that COFFEE FLOUR is the
genus of flour made of coffee cherry skins, pulp, and pectin.” 13 TTABVUE 14. This
suggested genus is a shortened version of the portion of its identification of goods that
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reads “flour made by processing and blending together coffee cherry skins, pulp, and
pectin . . . .”
We find that “flour made from coffee cherry skins, pulp and pectin,” a modified
version of Applicant’s suggested genus, is more succinct and useful in our analysis
under the second Marvin Ginn inquiry than is the entire identification of the goods
in the application, which also includes language specifying how the goods are made
and used.18 “Flour made from coffee cherry skins, pulp and pectin” “capture[s] the
essence of the genus involved herein, using somewhat fewer words than [was]
required by the Office in order for this Applicant to present a definite identification
of goods . . . .” Active Video, 111 USPQ2d at 1602.
B. The Relevant Purchasing Public’s Understanding of COFFEE
FLOUR
We turn now to the second inquiry under Marvin Ginn, whether COFFEE FLOUR
is understood by the relevant public primarily to refer to flour made from coffee cherry
skins, pulp and pectin.
1. Defining the Relevant Purchasing Public
We must first identify the relevant purchasers of the goods. Id. We again refer to
the record to do so. See, e.g., In re Tennis Indus. Assoc., 102 USPQ2d 1671, 1674
(TTAB 2012).

18 In a response to an information request during prosecution, Applicant stated that the word
“flour” in its proposed mark suggests the product’s “ability to be used in baking and/or
incorporation as an ingredient in other products.” July 22, 2014 Response to Office Action at
1. The record enables us to determine how, and by whom, flour made from coffee cherry skins,
pulp and pectin is used for purposes of our analysis under the second Marvin Ginn inquiry.
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The Examining Attorney argues that “the relevant public is the purchasing or
consuming public for the identified goods,” which she argues comprises “ordinary
consumers who purchase applicant’s goods, because there are no restrictions or
limitations to the channels of trade or classes of customers.” 15 TTABVUE 7-8 (citing
Sheetz of Delaware, Inc. v. Doctor’s Assocs., Inc., 108 USPQ2d 1341, 1351 (TTAB
2013) (citing Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551, 1553
(Fed. Cir. 1991)). She does not specifically identify the “ordinary consumers who
purchase applicant’s goods.”
Applicant does not expressly address this issue. The closest that it comes to
defining the relevant purchasing public is its listing of various persons in its
rhetorical question “ask any coffee drinker, chef, baker, pastry lover or other relevant
consumer, what is COFFEE FLOUR?” 13 TTABVUE 16.
The record includes the various articles regarding cooking and baking with
Applicant’s product discussed below, and on that basis we find that the relevant
purchasing public for the genus of flour made from coffee cherry skins, pulp and
pectin consists of persons who use flour for baking or as an ingredient in foods and
beverages, including retailers who sell foods and beverages, restaurants, bakeries,
producers and sellers of foods and beverages, and members of the public who cook
and bake.
2. The Evidence Regarding the Relevant Purchasing Public’s
Understanding of COFFEE FLOUR
“Evidence of the public’s understanding of a proposed mark may be obtained ‘from
any competent source, such as consumer surveys, dictionaries, newspapers and other
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publications.’” Princeton Vanguard, 114 USPQ2d at 1830 (quoting In re Northland
Aluminum Prods., Inc., 777 F.2d 1556, 227 USPQ 961, 963 (Fed. Cir. 1985)). The
United States Court of Appeals for the Federal Circuit has also “made it clear that
the way an applicant uses an alleged mark (or a component term in a mark), or the
goods or services in connection with which it uses the alleged mark, in promotional
materials or packaging, is relevant to whether consumers will perceive the mark as
an indicator of source or instead as descriptive or generic.” ActiveVideo, 111 USPQ2d
at 1590 n.22 (citations omitted); see also In re Gould Paper Corp., 834 F.2d 1017, 5
USPQ2d 1110, 1112 (Fed. Cir. 1987).
We emphasize that this appeal involves the rare situation in which Applicant has
created a new genus of goods by being the first (and, according to the record, the only)
producer and seller of a new product—flour made from coffee cherry skins, pulp and
pectin. Professor McCarthy has described the branding challenges facing a category
creator like Applicant as follows:
The situation of a new product with a name which is first
used by the seller, is the classic context in which a name
becomes generic. That is, a seller comes on the market with
a product the public has never seen before. What will the
public call it? If the public adopts as the generic name of
the thing the word that the seller thinks is a mark, then it
is no longer a mark at all. . . . The critical period is when
the product first hits the market. It is then that the public
will adopt a name for it. In many cases, the seller only
realizes what is happening to the word after it is too late.
The seller struggles mightily to educate the public to use
some name other than the term he wants to call his mark.
But it may be to no avail.
. . .
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In many of the reported cases holding a term generic,
blame could be laid at the door of the seller who brings out
a new and unfamiliar product and does not give the product
an easily recognizable generic name in addition to the term
which the seller considers to be its trademark. . . . When a
new and unfamiliar product, such as a new electronic
device, arrives on the market, precautions must be
immediately taken to protect the trademark significance of
a new designation to prevent its becoming a generic name
free for all to use. The seller has options. It could create a
generic name for the product and use as a trademark a
mark which has been previously used on other goods. . .
The company that wishes to have a new trademark for a
new and unfamiliar product will have to devise two new
words—the mark and the generic name.
McCarthy on Trademarks and Unfair Competition, §§ 12.25, 12.26 (4th ed., June
2017 Update) (“McCarthy”).
“[T]he fact that an applicant may be the first or only user of a generic designation
. . . does not justify registration if the only significance conveyed by the term is that
of the category of goods.” In re Greenliant Sys. Ltd., 97 USPQ2d 1078, 1083 (TTAB
2010) (citations omitted). The law does not permit “anyone to obtain a complete
monopoly on use of a descriptive term simply by grabbing it first.” KP Permanent
Make-Up, Inc. v. Lasting Impressions, Inc., 543 U.S. 111, 72 USPQ2d 1833, 1838
(2004) (citation omitted). Applicant, as the category creator, had the opportunity—
and the obligation—“to educate the public to use some name other than the term [it]
wants to call [its] mark.” McCarthy, § 12.25. The obligation arises in part from the
need of prospective competitors to use a generic term when marketing their own
versions of goods with the same attributes. As the Federal Circuit has explained, “[t]o
allow trademark protection for generic terms, i.e., names which describe the genus of
goods being sold, even when they have become identified with a first user, would
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grant the owner of the mark a monopoly, since a competitor could not describe his
goods as what they are.” In re Merrill Lynch, Pierce, Fenner, & Smith, Inc., 828 F.2d
1567, 4 USPQ2d 1141, 1142 (Fed. Cir. 1987). See also In re Pennington Seed Inc., 466
F.3d 1053, 80 USPQ2d 1758, 1762 (Fed. Cir. 2006) (applicant who designated “Rebel”
as the varietal name for its grass seed under the Plant Variety Protection Act and
who “failed to associate any additional word with the Rebel grass seed that would
indicate the seed’s source” was “prohibited from acquiring trademark protection for
the generic and only name of that variety of grass seed.”).
The record evidence here is derived almost entirely from the “critical period . . .
when the [COFFEE FLOUR] product first hit[] the market,” McCarthy, § 12.25, so in
determining the relevant purchasing public’s understanding of COFFEE FLOUR
under the Marvin Ginn test, we will consider all of the record evidence, including: (1)
whether Applicant has adopted an existing generic term, or developed a new one, and
has used that generic term together with its proposed COFFEE FLOUR mark; (2)
whether Applicant has promulgated to the relevant purchasing public a generic term
other than “coffee flour” for its new product; and (3) whether Applicant has policed
the misuse of “coffee flour” as the generic term for the new genus, and otherwise has
taken steps “to educate the public to use some name other than the term [it] wants
to call [its] mark.” Id.
a. The Dictionary Meanings of the Elements of the
Proposed COFFEE FLOUR Mark
We turn first to the meaning of the words “coffee” and “flour” comprising the
proposed mark. A dictionary entry in the record defines “coffee” as, inter alia, “[a]ny
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of various tropical African shrubs or trees of the genus Coffea, especially C. Arabica
or C. canephora, widely cultivated in the tropics for their seeds that are dried,
roasted, and ground to prepare a stimulating aromatic drink.” October 15, 2015 Office
Action at 58 (The American Heritage Dictionary (ahdictionary.com), accessed October
9, 2015).19
“Flour” is defined as “[a]ny of various similar finely ground or powdered foodstuffs,
as of cassava, chickpeas, or bananas.” October 15, 2015 Office Action at 60 (The
American Heritage Dictionary (ahdictionary.com), accessed October 9, 2015). The
word “flour” appears in Applicant’s identification of goods, and Applicant
acknowledges that it is a generic word as used in Applicant’s mark. 13 TTABVUE 12.
Relying primarily on these dictionary definitions, the Examining Attorney argues
that COFFEE FLOUR “is a generic compound term because each of the constituent
words, ‘COFFEE’ and ‘FLOUR,’ is itself generic, and when combined, the composite
lends no additional meaning to the total combination.” 15 TTABVUE 7. Given that

19 The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac
v. J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff’d, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed form or regular fixed
editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006). We take judicial notice
of an additional definition of “coffee” from the Merriam-Webster dictionary (merriam-
webster.com, accessed on August 2, 2017) in which “coffee” is similarly defined, but is referred
to as a plant: “any of several Old World tropical plants (genus Coffea and especially C. Arabica
and C. canephora) of the madder family that are widely cultivated in warm regions for their
seeds from which coffee is prepared.” Coffee is also referred to interchangeably as a plant and
as a tree in pages from the website at howstuffworks.com made of record by Applicant,
December 24, 2014 Response to Office Action at 4, in a Wikipedia page regarding coffee beans
made of record by the Examining Attorney, August 13, 2014 Office Action at 7, and in pages
from the website of the National Coffee Association answering the question “What is Coffee?”
made of record by the Examining Attorney. October 15, 2015 Office Action at 62-63.
Applicant’s website (depicted and discussed below) also refers to the coffee plant.
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the record includes evidence of the public’s understanding of the compound term,
including evidence of Applicant’s own use of it, we should not rely on the dictionary
definitions of the individual words alone. See Princeton Vanguard, 114 USPQ2d at
1832 (“Regardless of whether the mark is a compound term or a phrase, the applicable
test is the same and the Board must consider the record evidence of the public’s
understanding of the mark as a whole.”). The dictionary definitions of the individual
words “coffee” and “flour” in the proposed mark are probative of the public’s
understanding of their combination as “coffee flour,” but they do not, in this case, give
us the complete picture.
As noted above, Applicant concedes that “flour” is a generic term as it is used in
Applicant’s identification of goods and in its proposed COFFEE FLOUR mark. This
is significant because there is extensive evidence in the record showing that the
relevant purchasing public has been exposed to numerous types of flour identified by
the use of the name of the source grain, plant, fruit, vegetable, bean, or nut from
which they are made. They include almond flour, apple flour, barley flour, banana
flour, bean flour, butternut squash flour, chestnut flour, coconut flour, corn flour,
garbanzo bean flour, hazelnut flour, potato flour, quinoa flour, rice flour, soy flour,
tapioca flour, and yam flour. October 15, 2015 Office Action at 75-86, 88-90, 93-95,
101, 104-105, 107-108, 111-116.
On the basis of this evidence, we agree with the Examining Attorney that the
combination of the words “coffee” and “flour” in the proposed mark yields “essentially
the apt or common name for the genus of goods at issue,” 15 TTABVUE 7, which is a
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new type of flour made from coffee cherry skins, pulp and pectin. Applicant’s co-
founder Dan Belliveau confirmed that “coffee flour” is the apt generic term for the
new product in an interview that he gave in October 2015, which is discussed in more
detail below. In response to the interviewer’s question “can you tell me how you got
the idea for coffee flour?,” Mr. Belliveau explained that during a discussion with the
owner of a coffee roasting company about what could be done with rotting coffee
cherries, he thought to himself “why can’t we take this, grind it up, and use it for
something? And the words ‘coffee flour’ just came into my head.” October 15, 2015
Office Action at 53.
Applicant also confirmed the aptness of “coffee flour” as the generic term for the
product by using it as such in multiple places in its application to patent what it
called a “Process for obtaining honey and/or flour of coffee from the pulp or husk and
the mucilage of the coffee bean.” March 16, 2015 Office Action at 11. Claim 5 in the
application covers a “process for obtaining coffee flour from the pulp or husk of the
coffee bean” consisting of multiple steps, after which “the product . . . is . . . then
packed, stored and commercialized.” Id. at 12. Applicant identified “the product” as
“coffee flour.” Applicant similarly used “coffee flour” generically in its description of
Figure 3, “a flow chart for the process of obtaining coffee flour from the process of
FIG. 1,” id. at 18, in Table 5, which is a “Compositional Comparison of Coffee Flour
and Corn,” id. at 25, and elsewhere in the application. Id. at 18-19, 21.
While “[a]ptness is insufficient to prove genericness,” Am. Fertility Soc’y, 51
USPQ2d at 1836, the aptness of “coffee flour” as the generic term for Applicant’s new
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product, which appears to be among the latest in the long list of non-grain flours
discussed above, makes it likely that “coffee flour” will be understood as the generic
name of the goods unless Applicant “educate[s] the public to use some name other
than” coffee flour to identify the new genus of goods. McCarthy, § 12:25. We thus
review Applicant’s own use of COFFEE FLOUR to determine whether Applicant
adopted or developed, and then used, a generic term other than “coffee flour,” and
whether Applicant successfully promulgated that generic term to the relevant
purchasing public, resulting in the public’s understanding of “coffee flour” as
Applicant’s trademark rather than as the generic name of Applicant’s goods.
b. Applicant’s Own Use of COFFEE FLOUR
Applicant argues at length that COFFEE FLOUR is not the generic term for its
product, but in its brief it never states exactly what the generic term is.20 At one point,
Applicant seems to suggest that “flour” alone is the generic term when it argues that
COFFEE FLOUR “is merely a combination of the generic word ‘flour’ to which the
descriptor ‘coffee’ has been applied.” 13 TTABVUE 12.21 At another point, Applicant
argues that “there are other ways [than coffee flour] to describe the Applicant’s
products,” offering as examples “‘powdered coffee cherry skins, pulp pectin,’ or ‘finely
ground coffee cherry skins, pulp and pectin,’” 13 TTABVUE 15, but stops short of

20 In Applicant’s request for reconsideration, Applicant argued that the “generic name for
Applicant’s goods would be ‘coffee cherry skin, pulp, and pectin flour’ or ‘coffee husks and
skins’ as set forth in the tariff classification – not ‘coffee flour.’” 4 TTABVUE 2. It does not
maintain that position on appeal.
21 We address below Applicant’s related argument that its proposed mark is merely
descriptive rather than generic.
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claiming that these hypothetical generic terms are the actual generic terms for its
new product.
“It is well established that the availability of other words for competitors to use
does not, by itself, transform a generic term into capable matter.” In re Trek 2000 Int’l
Ltd., 97 USPQ2d 1106, 1109 (TTAB 2010). More importantly, the record is devoid of
evidence that Applicant or the public has ever used these hypothetical generic
terms—or anything other than “coffee flour” itself—as the generic term for
Applicant’s new product. Applicant’s failure to provide a generic term other than
“coffee flour” in its brief to the Board mirrors what the record shows to be its failure
to provide a generic term other than “coffee flour” to the public. As discussed below,
this failure contributed to the public’s understanding of “coffee flour” as a generic
term, not a trademark.
The most pertinent portions of the record reflecting Applicant’s own use of
COFFEE FLOUR are Applicant’s specimen of use and three-minute promotional
video, 13 TTABVUE 4, made of record by Applicant, and pages from Applicant’s
website at coffeeflour.com, made of record by the Examining Attorney. These portions
of the record reflect the way in which Applicant chose to use its proposed mark and
to describe its new product in its own public-facing materials. Applicant’s brief makes
the conclusory claim that its “use of ‘Coffee Flour’ on its website and in other
promotional and press materials is clear trademark usage and, therefore, cannot be
treated as generic,” 13 TTABVUE 14, but Applicant never addresses its specific uses
or their impact on the relevant purchasing public’s understanding of “coffee flour.”
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i. Applicant’s Specimen of Use
Applicant’s specimen of use is depicted below.

Applicant’s product label does not bear Applicant’s hypothetical generic terms. While
it uses “coffee flour” in prominent stylized lettering, in the position and manner of a
trademark, no separate generic term for the product accompanies the putative mark.
In the absence of a separate generic term, the use of the phrase “the new impact food
for the world” directly below “coffee flour” suggests that “coffee flour” is the new
impact food, not the brand name identifying the goods of one seller of the “new impact
food.”
ii. Applicant’s Video
In its description of the record, Applicant states that its video “describ[es] the story
of Applicant’s product and its creation from coffee cherry husks and skins.” 13
TTABVUE 4. Applicant does not discuss the video elsewhere in its brief, but on the
basis of a page from Applicant’s website in the record, we can infer that the video has
been available on Applicant’s website. March 16, 2015 Office Action at 26. The video
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vividly illustrates Applicant’s choice, in its own controlled and sophisticated
messaging, to use “coffee flour” to refer to a new type of flour made from coffee cherry
skins, pulp and pectin.
The video in the record does not use voice narration, but relies instead on a series
of graphic images accompanied by words, an example of which is reproduced
immediately below.

The “story of coffee flour” is told largely from the perspective of coffee-growing
communities, which the video explains can benefit economically, socially, and
environmentally from the production of a new product made from coffee cherries,
which, the video also explains, have traditionally been discarded or left to rot when
coffee beans are harvested. This theme is illustrated by the image reproduced
immediately below.

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The video describes the marketability of coffee flour on the basis of its ease of
production, its comparative health benefits “vs. other flours,” and its versatility as an
ingredient in foods. The comparative health benefits “vs. other flours” are illustrated
by the images reproduced immediately below.

The video also touts the new product’s versatility, as illustrated in the images
reproduced immediately below, and its potential as “one of the most important
ingredients of our time” and “the impact food for the world.”
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The video concludes with a call to action on the part of viewers. It states “Now It’s
Up To Us To Make It Come True” and asks viewers to “Please sign up for Coffee Flour
updates to learn about how you might get involved.”
“Coffee flour” is treated throughout the video primarily as the name of a new
product category, flour made from coffee cherry skins, pulp and pectin, not as a
trademark. The video’s messaging encourages viewers to “get involved” with this new
product category as part of responsible world citizenship, not necessarily to buy a
particular brand of flour made from coffee cherry skins, pulp and pectin sold by
Applicant under the name “coffee flour.” Viewers of the video would understand
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“coffee flour” to refer to a new type of flour made from coffee cherry skins, pulp and
pectin, rather than as the trademark of one producer of that new product.
iii. Applicant’s Website
The record also contains pages from Applicant’s website featuring Applicant’s
product. Representative pages (or pertinent portions of pages) from Applicant’s
website are reproduced below.22 We discuss the pages in the text that immediately
follows them.

22 The highlighting and other emphasis in all of the materials from the record reproduced in
this opinion were supplied by the Examining Attorney during prosecution.
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August 13, 2014 Office Action at 5-6.
All of these pages, including the website’s masthead page, use “coffee flour” in
lower case lettering as a compound noun, without an accompanying generic term.
“Coffee flour” is called “one of the most uniquely dynamic and flavor-rich alternative
(gluten free, that is) flours out there” and “an agricultural innovation with the
potential to do some really great things for the world.” “Coffee flour’s” nutritional
properties are compared to those of other generic types of flour, including wheat flour
and coconut flour, as well as generic types of produce, including kale and bananas,
with one comparison claiming that “1 oz. of coffee flour™ has 2x the potassium of a
banana.”23 The “news update” page discusses the use of “coffee flour™” as an
ingredient, and states that “coffee flour™” could mitigate Mexico’s bad coffee harvest
and create new jobs in Nicaragua, echoing themes in Applicant’s video. The “recipes”
page shows a product label that states that shortbread cookies can be made with “25%
coffee flour.”
As discussed in more detail below, Applicant’s use of “coffee flour” in lower case
letters on these pages is a classic example of the use of a putative mark as a generic
term, particularly given that capitalization is used elsewhere on the pages. See, e.g.,
Luxco, Inc. v. Consejo Regulador del Tequila, A.C., 121 USPQ2d 1477, 1492 (TTAB
2017), and cases cited therein. In context, these uses all communicate that “coffee

23 We can infer from Applicant’s use of the symbol ™ next to the words “coffee flour” that
Applicant intended to communicate to the public through the use of the symbol that
Applicant claimed the words as its trademark. The mere “[u]se of the letters ‘™’ on a product
does not make unregistrable matter into a trademark,” In re Remington Prods. Inc., 3
USPQ2d 1714, 1715 (TTAB 1987), and Applicant’s use is significant only if it contributed to
educating the public to understand that “coffee flour” is something other than a generic term.
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flour” refers to a new type of flour made from coffee cherry skins, pulp and pectin,
which can be used as an ingredient and which is comparable to other traditional and
non-traditional, but generic, types of flours. The uses identify a product, not a
particular producer of that product, and Applicant does not provide any term other
than “coffee flour” to use to refer to flour made from coffee cherry skins, pulp and
pectin.
We turn next to Applicant’s revised webpages made of record by the Examining
Attorney in October 2015. October 15, 2015 Office Action at 65-67, 72.

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Like Applicant’s 2014 webpages, these 2015 webpages use “coffee flour” as a
compound noun, unaccompanied by another generic term, to identify a product that
is again described as “[a]n agricultural innovation with the potential to do some great
things for the world” and “an incredibly versatile ingredient.” They discuss the
“CoffeeFlour® global community” and the fact that CoffeeFlour® “was included as an
ingredient” in a series of dishes served at a pop-up restaurant in New York, all of
which “were made entirely from ingredients formerly considered waste products.”
These pages again use “coffee flour” to identify a product, not a particular producer
of that product, and like their earlier counterparts, they do not provide anything other
than the words “coffee flour” to use in referring to flour made from coffee cherry skins,
pulp and pectin. For example, the headline of the first page in this group reads “coffee
flour® is . . .” This use of the words “coffee flour” is particularly probative because it
expressly states that “coffee flour is” a thing and the text directly below the use
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“‘tell[s] you what the thing is.’” In re Noon Hour Food Prods. Inc., 88 USPQ2d 1172,
1180 (TTAB 2008) (quoting In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 219
(CCPA 1978) (Rich, J., concurring)).
These pages differ from their 2014 counterparts in two respects. First, for the most
part they display the words “coffee flour” in compressed form as “CoffeeFlour,” with
initial capital letters used in the two words, rather than as two separate words. This
compressed depiction of the proposed mark is irrelevant to our analysis because
Applicant seeks registration of COFFEE FLOUR in standard characters, and thus
must have the genericness of its proposed mark “assessed without limitation to any
particular depiction of that term.” In re Calphalon Corp., 122 USPQ2d 1153, 1160
(TTAB 2017) (proposed mark SHARPIN in standard characters found to be merely
descriptive without consideration of one of its actual depictions as SharpIN). Even if
we considered this particular depiction, however, “minor variations, such as spacing
and upper- versus lower-case letters, in the display of a generic term (e.g., ‘cloud TV,’
‘Cloud TV,’ ‘CloudTV’ or ‘CLOUDTV’) typically are legally insignificant and do not
avoid a finding of genericness.” ActiveVideo, 111 USPQ2d at 1604. Because “[w]e find
no evidence that Applicant’s compressed version of [CoffeeFlour] has another
meaning or would be perceived as anything other than a reference to” coffee flour, id.,
and because it is nowhere accompanied by another generic term, Applicant’s use of
the compressed words does not avoid a finding of genericness on this record. Cf.
Plyboo Am. Inc. v. Smith & Fong Co., 51 USPQ2d 1633, 1638 (TTAB 1999) (Board
found in descriptiveness opposition that evidence showed that applicant’s “term
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‘plyboo’ is clearly used as a trademark for applicant’s goods—in that the first letter of
such term (like a proper noun or proper adjective) is capitalized, or the term is
otherwise set off by quotation marks, and the term is followed (or preceded) by generic
terminology for the goods. . . .”).24
Second, these pages show Applicant’s use of the federal registration symbol ® next
to the words “CoffeeFlour,” in place of the “™” symbol that had been used on the
earlier webpages discussed above. A magnified example of Applicant’s use of the
registration symbol on these pages is reproduced below.

We can infer from Applicant’s use of the registration symbol that Applicant intends
to communicate to the public not just that Applicant claims the words “coffee flour”
(or “CoffeeFlour”) to be its trademark, but that it has actually registered the words
alone as its trademark.25 That message was (and is) false, and Applicant’s use of the
registration symbol next to the words “coffee flour” on its website and in the two press
releases in the record was (and is) improper.26 In any event, the record as a whole

24 The fact that the compressed words “CoffeeFlour” are depicted with initial capital letters
on Applicant’s website and elsewhere in the record similarly “does not compel a different
result.” Capital Project Mgmt. Inc. v. IMDISI Inc., 70 USPQ2d 1172, 1179 (TTAB 2003)
(finding “time impact analysis” to be generic even though “the term often appears in print in
initial capital letters, that is, ‘Time Impact Analysis.’”).
25 We can also infer from Applicant’s prior use of the ™ symbol that Applicant knows the
difference between the ™ and ® symbols.
26 It is improper to use the federal registration symbol in connection with an unregistered
mark. Copelands’ Enters. Inc. v. CNV Inc., 945 F.2d 1563, 20 USPQ2d 1295, 1298 (Fed. Cir.
1991); see 15 U.S.C. § 1111. Applicant does not own a registration of the words “coffee flour”
alone. When the webpages displaying use of the registration symbol were downloaded by the
Examining Attorney in October 2015, Applicant owned Registration No. 4806487 for a
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shows that Applicant’s misuse of the registration symbol has not caused the public to
understand “coffee flour” to be something other than a generic term for flour made
from coffee cherry skins, pulp and pectin.27
Like its specimen and promotional video, Applicant’s website does not use its
proposed generic terms, or any others, to identify the new flour made from coffee
cherry skins, pulp and pectin. Only the compound noun “coffee flour” is used for that
purpose. The compressed manner of depiction of the compound noun “coffee flour,”
and the use of trademark symbols with it on Applicant’s website, do not convert it
into a trademark.
Applicant’s uses of its proposed mark in its own materials discussed above make
it clear that when it brought “out a new and unfamiliar product [it did] not give the
product an easily recognizable generic name in addition to the term which [it]
considers to be its trademark.” McCarthy, § 12.26. Under the circumstances,
Applicant would have been better off devising “two new words—the mark and the
generic name,” id., but failed to do so.28 Instead, it used “coffee flour” itself as the

stylized depiction of the words “coffee flour,” but Applicant had disclaimed the exclusive right
to use the words “coffee flour” apart from the mark as shown. October 15, 2015 Office Action
at 5. When fraudulent misuse of the registration symbol, i.e., use with the intent to deceive
the purchasing public or others in the trade into believing that a mark is registered, is
conclusively established, the fraud defeats an applicant’s right to a registration. See
Copelands, 20 USPQ2d at 1298 (citing Johnson Controls, Inc. v. Concorde Battery Corp., 228
USPQ 39, 44 (TTAB 1985)). The record in this case is not developed with regard to this issue.
27 We leave for another day the question of whether an applicant could ever legitimately rely
upon evidence involving its misuse of the registration symbol to prove that it has educated
the public to view its proposed mark as something other than a generic term.
28 This failure may be due to the fact that “as a marketplace reality, the apt term ‘[COFFEE
FLOUR]’ is much shorter and more nimble than the cumbersome phrases that Applicant
offers as generic alternatives.” ActiveVideo, 111 USPQ2d at 1605. Whatever the reason,
Applicant’s failure to use any alternative to “coffee flour” as the generic term for its new flour
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generic name for its new and unfamiliar flour made from coffee cherry skins, pulp
and pectin. Through its own uses of “coffee flour” in its marketing communications,
Applicant promulgated “coffee flour” to the public as the generic name for flour made
from coffee cherries. Applicant’s own uses provide “damaging evidence that its alleged
mark is generic and would be perceived by the purchasing public as merely a common
name for its goods rather than a mark identifying the good’s source.” Gould, 5
USPQ2d at 1112.
We turn next to a review of the record evidence showing the public’s use of the
proposed mark COFFEE FLOUR.
c. Communications Involving Applicant’s Participation or
Input
The record contains a number of articles regarding Applicant’s new product,
including several in which Applicant’s principals Dan Belliveau and Andrew Fedak
are quoted, or in which statements are attributed to them, to Applicant generally, or
to Applicant’s apparent affiliate CF Global. These articles “may be considered
probative evidence of the meaning [COFFEE FLOUR] may have in the marketplace.”
Plyboo, 51 USPQ2d at 1640 (internal quotation omitted). The record also contains a
joint press release issued by Applicant and a retailer.
These materials are especially probative on the second Marvin Ginn inquiry.
Applicant’s contacts with the news media in the course of the preparation of the
articles, and the nature of the joint press release, gave Applicant the opportunity to

made from coffee cherry skins, pulp and pectin contributed to the public’s understanding that
“coffee flour” is the generic term for the new product.
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influence the use of its proposed mark in these communications to the public, and to
avoid misuses as a generic term. The articles and the press release are thus directly
relevant to our inquiry regarding whether Applicant policed the use of “coffee flour”
by others and took steps to educate the public to use some name other than “coffee
flour” as the generic term for Applicant’s new product.
An April 2014 article in the Seattle Times29 described Applicant as “a local startup
[which] is trying to make a new culinary staple out of coffee flour.” It explained that
coffee flour is “made by grinding the dried pulp of coffee cherries, the fleshy coverings
of the beans, which are usually thrown out.” A statement was attributed to Mr.
Belliveau that “[t]he resulting product can be baked into bread, cakes and
doughnuts.” Statements were also attributed to Applicant, or to Mr. Belliveau
personally, that “[c]offee flour doesn’t taste like coffee, but has more ‘floral, citrus and
roasted fruit-type notes,” that “up to 8 billion pounds of coffee flour could be produced
worldwide per year if the coffee crop is appropriately utilized by flour millers,” and
that Mr. Belliveau “sees coffee flour as a supplement to other flours, not a full
replacement. Unlike many gluten-free flours, it has good binding qualities, he said.”
A statement attributed to “coffee-flour advocates” said that “it has five times more
fiber than the conventional wheat variety, and 84 percent less fat than coconut flour.”
The article also discussed mixed early results from the use by restaurants of
“coffee flour” as an ingredient in cake and pasta, but stated that “dialing the coffee
flour component down to a quarter and adding almonds, eggs and other flours worked

29 October 15, 2015 Office Action at 38-40.
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well” in one recipe. The article quoted Jason Wilson, a Seattle restaurateur, as stating
that the “robust flavor” of coffee flour has made it a “key ingredient in a variety of
dishes on our menu.”
The article repeatedly used “coffee flour” in lower case letters as a compound noun
in its title and body, and it attributed similar uses to Mr. Belliveau and Mr. Wilson.
“Coffee flour” was referred to as a product, an ingredient, and a component, not as a
trademark, and its nutritional properties were compared to those of other flours,
including by “coffee-flour advocates.” We can infer from these uses of “coffee flour” in
the article that the author, Mr. Belliveau, Mr. Wilson, and the unidentified “coffee-
flour advocates” all understood “coffee flour” to be a generic term. Noon Hour, 88
USPQ2d at 1179.30 Readers of this article, and the others discussed below, would
understand “coffee flour” to refer to a type of flour made from coffee cherry skins, pulp
and pectin.
The Seattle Times article was referenced in an article several weeks later that
appeared on the website thekitchn.com.31 The website article discussed “the newest
in an already robust line-up of alternative flours: coffee flour.” It stated that “[t]his
very new gluten-free flour is made from the pulp of coffee cherries and is apparently
super high in protein.” It stated that the “company in charge of spearheading the new
flour insists that it actually doesn’t taste like coffee, but more citrusy with fruit
notes.” The author asked the rhetorical question “why this?” product given “all the

30 We draw a similar inference from the uses of “coffee flour” in the other articles discussed
below.
31 October 15, 2015 Office Action at 47-48.
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new food products and flours out on the market today,” and stated that “the answer
to that question in regards to coffee flour could be the nutrition and the extra option
for gluten-free folks.” The author compared “the flour” favorably to conventional
wheat flour and coconut flour generally, rather than to specific brands of wheat or
coconut flour.
This article also used “coffee flour” in lower case lettering as a compound noun to
refer to a new flour. It alluded to Applicant, “the company in charge of spearheading
the new flour,” but did nothing to suggest that the company claimed “coffee flour” to
be its trademark rather than the name of the “new flour” that it was spearheading.
An April 2014 article from The Atlantic magazine32 explained the production of
“coffee flour” from coffee cherries. It stated that Applicant’s affiliate CF Global “is
trying to reclaim the coffee cherry. Its big idea is this: to take the remnants of the
process that turns the coffee bean into a beverage … and turn them into food. The
result of this? CoffeeFlour, a food ingredient that’s made from discarded coffee
cherries.” It attributed a statement to CF Global that the end result of its process is
“a flour that can, CF Global says, mimic traditional flour.” “Coffee Flour, the company
claims, can be used in pasta and baked goods,” and for multiple other uses. This
article displayed the words “CoffeeFlour” in the compressed form seen on Applicant’s
website, but used those words as a compound noun to refer variously to a food, an
ingredient, and a flour.

32 March 16, 2015 Office Action at 7-8.
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An April 2014 article from Bloomberg Business entitled “Introducing Coffee
Flour”33 began by stating that “[t]wo years ago Dan Belliveau hit upon the idea for a
new product: Coffee Flour.” After explaining the historic disposal of coffee cherries
during coffee production, the article stated that Mr. Belliveau “took it upon himself
to create a rudimentary coffee berry flour and began experimenting.” It stated that
his company has “developed a patent-pending process for the milling of commercial-
grade coffee flour,” which the article described as a product that “has three times
more iron than spinach, three times more protein per gram than kale, and five times
more fiber than whole grain flour.” It also stated that “coffee flour is best used in
combination with other grains.” It quoted Mr. Belliveau as saying that “[m]ost flours
are somewhere between 5 and 12 percent fiber. Coffee flour is 55 percent fiber,” and
stated that CF Global “plans to produce about 350,000 pounds of coffee flour this
year.” This article used “coffee flour” to refer to “a new product” that Applicant
intended to produce, in commercial-grade quality and in large quantities, and that is
more nutritious than other flours. There was no use of a different generic term for
the “new product” and no suggestion that “coffee flour” is a brand name.
A July 2014 article from the United States edition of The Guardian34 purported to
answer readers’ questions regarding “edible coffee” arising from “a recent article on
the use of coffee cherries to make flour.” The article stated that Mr. Belliveau
“developed a new use for coffee cherry – Coffee Flour, advertised as a gluten-free

33 October 15, 2015 Office Action at 23-25.
34 October 15, 2015 Office Action at 42-44.
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product that has five times more fiber than whole grain wheat flour, three times more
protein than kale and other health and environmental benefits.” It went on to say
that it “picked several comments from our readers and turned to experts to find the
answers to their questions.” One of the comments pertained to whether it was better
to turn coffee cherries into compost for local use rather than into coffee flour for
export. The article responded by attributing a statement to Mr. Belliveau that “the
Coffee Flour program was structured in a way that lets local food manufacturers –
those in locations where the flour is produced – create products that are consumed
locally.” He was quoted as saying that “‘[o]ur goal is to have 50% of the coffee flour
remain in the country of origin and the balance exported.’” (Emphasis added.)
This article used “coffee flour” to refer to a product. Mr. Belliveau’s statement that
Applicant’s goal “is to have 50% of the coffee flour remain in the country of origin,”
with the rest exported, made it clear that “coffee flour” is a product that can have
multiple sources, including local food manufacturers, not Applicant’s trademark for
a single source of the goods.
An October 2014 article from foodrepublic.com, entitled “Coffee Flour: Rich in
Antioxidants and Makes a Pretty Good Cookie,” and subtitled “Learn to bake with
flour made from coffee berries,”35 described “coffee flour [as] an elegant solution to an
ugly problem” and recounted the author’s visit with Applicant’s principal Andrew
Fedak. The author stated that after “five months, a handful of missed connections
and scads of e-mails, this was it: I was finally going to taste coffee flour.” When he

35 October 15, 2015 Office Action at 31-33.
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arrived at Mr. Fedak’s office, he was greeted with a “bag of coffee flour chocolate chip
cookies” and was later given “some of the flour.”
The author described cooking and baking with “coffee flour,” including making
oatmeal cookie bars with “coffee flour” rather than oat flour and using it in cooking
blackened catfish, where the “coffee flour blended with the oregano and thyme in the
recipe.” He wrote that when he tasted the fish, he understood “why Fedak said that
the coffee flour made a good addition to pork carnitas and chicken mole.” The author
lamented the limited supply of the product, and recounted Mr. Fedak’s statement
“that the flour, which is currently being taste-tested with consumer focus groups, will
have a wide roll-out in 2015” and his estimate “that within a few years, the company
will be producing millions of pounds of coffee flour per year.” The uses of “coffee flour”
in this article, including those attributed to Mr. Fedak, referred to a product; they
described it as an ingredient in foods and a substitute for other flours in baking.
In a June 2015 interview of Mr. Belliveau by the website at munchies.vice.com,
which was intended “to talk about coffee flour’s conception and its potential to reduce
waste and boost the incomes of famers around the world,”36 “coffee flour” was used to
refer to “a high-protein, high-fiber, gluten-free ‘flour’ that’s the result of slow-drying
coffee cherry pulp and grinding it into a fine powder.” “Coffee flour” was identified as
having been used as an ingredient in sorbet, brownies, coffee cakes, cookies, and other
foods.

36 October 15, 2015 Office Action at 52-54.
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Mr. Belliveau did not characterize or use “coffee flour” as Applicant’s trademark
in his answers to the interviewer’s questions. To the contrary, in response to the
question “Can you tell me how you got the idea for coffee flour?,” he explained that
“the words ‘coffee flour’ just came into my head” when he was discussing what to do
with coffee cherries with a coffee producer, and in response to the question “What
does coffee flour taste like, and how can it be used in cooking?,” he described how
“[s]ome of the acids in the coffee flour mask some of the bitter notes in chocolate,”
making coffee flour a useful ingredient in baking. He explained that millions of
pounds of “dried coffee flour” can be extracted from a large quantity of wet coffee
cherries.
The munchies.vice.com interview occurred more than a year after the appearance
of the first articles regarding Applicant’s new product, but it used “coffee flour” in
lower case lettering as a compound noun to identify a product. There was no effort
whatsoever by Applicant to inform readers that “coffee flour” is a trademark.
In an article entitled “There’s So Much More to This Gluten-Free Flour Than
Delicious Pastries” from takepart.com in July 2015,37 the author attributed
statements to both of Applicant’s principals, and quoted Mr. Fedak. The flour
discussed in the article is identified as “CoffeeFlour [which] is the chestnut-hued,
gluten-free flour milled from dried cherry pulp.” A statement was attributed to Mr.
Fedak that at a coffee mill in Nicaragua, “Coffee Flour created 70 new jobs, 90 percent
of which went to women.” The article also noted that “[o]ne of the criticisms of

37 April 14, 2016 Request for Reconsideration at 2-4.
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CoffeeFlour is that it would divert coffee pulp from farmers who use it as fertilizers
for their coffee plants.” A response was attributed to Mr. Fedak that “there is more
than enough to go around.”
The takepart.com article used “CoffeeFlour” to refer to a product, a gluten-free
flour made from coffee cherries, not a brand of that product, and no generic term for
the product other than “CoffeeFlour” was provided. Mr. Fedak’s statements that some
coffee flour can remain in coffee-producing communities made reference to a thing,
not a brand.
Applicant jointly issued a press release with Sprouts Farmers Market, a food
retailer described as “a healthy grocery store offering fresh, natural and organic foods
at great prices.”38 We can infer from its nature and contents, and the attribution of
statements in it to Mr. Belliveau, that Applicant participated in its drafting or at
least reviewed it before it was disseminated to the public. The press release primarily
used “CoffeeFlour®” to identify Applicant as a corporate entity, but it also used
“CoffeeFlour®” to refer to “the new global impact food,” a “primary ingredient” in
Sprouts’ new pastries, an “ingredient” invented by Mr. Belliveau, and “an agricultural
innovation.” Readers of the press release had nothing other than “CoffeeFlour” to use
to refer to the new product and ingredient.
d. Other Communications
We turn finally to two articles and a press release that discuss Applicant’s new
product, but do not appear to reflect any direct input by Applicant.

38 April 14, 2016 Request for Reconsideration at 11-12.
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An April 2014 article from huffingtonpost.com39 discussed “[a] new product, coffee
flour.” It stated that “[t]his product has examined the waste created in coffee
production - like all those cherries that house the coffee beans we so revere – and
strives to turn it into a positive.” The new coffee flour “could be a great thing for coffee
farmers, giving them another source of revenue; and it could also be great for those
who love to cook, giving us another ingredient to play with.” The article stated that
coffee flour had already been used in pasta, cakes, and cookie recipes, that its
nutritional properties compared favorably to those of wheat flour, kale, and spinach,
and that it had an extra “perk” by being caffeinated.
This article used “coffee flour” to refer to a product, a new type of flour made from
coffee cherries. It did not identify or mention Applicant, except to the extent that the
ambiguous statement “Coffee flour, as you can deduce from the name, has turned this
fruit into a flour and hopes to bring the product into the mainstream market in 2015”
could be read to identify a company instead of the new product itself.
A July 2015 article from eatclean.com entitled “Coffee, Almond, Quinoa, Rice:
Which Gluten-Free Flour Should You Buy?,”40 compared various types of gluten-free
flours to one another. The article listed “banana” and “coffee” as examples of “Unusual
Flours.” It stated that “[c]offee flour, made from the pulverized coffee fruit (basically,
what’s left over after the coffee bean is harvested), is brand new to the scene” (emphasis
added), but that one gluten-free bakery was “already using the stuff in brownies and

39 October 15, 2015 Office Action at 35-36.
40 October 15, 2015 Office Action at 26-29.
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cookies.” It noted that neither banana flour nor “coffee flour” has much structure, but
that “[c]offee flour is rich in fiber, protein, iron, and potassium,” and also has some
caffeine. It concluded by stating that you “can’t buy coffee flour yet, but the folks at
coffeeflour.com say it should be hitting stores sometime this year.”
This article used “coffee flour” as a compound noun to refer to an unusual new
flour, which the article compared to other types, rather than brands, of gluten-free
flours, and explained could be used as an ingredient in cooking and baking. It alluded
to Applicant, but did nothing to suggest that “coffee flour” is Applicant’s trademark
instead of the generic term for the new flour made from pulverized coffee fruit.
A 2016 press release from Seattle Chocolate Company41 introduced “the first-to-
market Coffee Flour®-infused chocolate bar.” It depicted through graphics the
production of “CoffeeFlour®,” which the release stated “is made from dried coffee
cherry pulp, a former waste product that is milled into a nutrient-dense, flavor-rich
ingredient” and “enhances the distinct flavor profile and nutritional value.” It stated
that the “inclusion of CoffeeFlour® enhances the new joco chocolate bar with a berry-
forward flavor” and touted the fact that Seattle Chocolate Company “is the only
chocolate confectioner in the world to be incorporating this superfood newcomer.”
“CoffeeFlour®” was also referred to as the “new global impact food” and a “nutrient-
rich ingredient suitable for cooking and baking.” This press release used
“CoffeeFlour®” to refer to a superfood, an ingredient, the new global impact food, and

41 April 14, 2016 Request for Reconsideration at 13-14.
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a flour made from the coffee cherry pulp without providing a generic term other than
“coffee flour” for these things.
e. Applicant’s Arguments Regarding the Evidence of the
Public’s Use and Understanding of COFFEE FLOUR
Applicant advances three primary arguments in the face of this evidence of the
public’s use and understanding of COFFEE FLOUR as a generic term.
First, Applicant argues that the “articles submitted by the Examining Attorney
that reference ‘coffee flour’ are all about Applicant and/or Applicant’s products. No
third-party uses of ‘coffee flour’ as a generic term are included. Thus, the relevant
public would not understand COFFEE FLOUR as a genus of goods.” 13 TTABVUE
13-14.
The articles in the record are all “about Applicant and/or Applicant’s products”
because Applicant was the first, and currently is the only, seller of flour made from
coffee cherries. But this is not dispositive of the public’s understanding of the
meaning of “coffee flour.” The relevant question is how the proposed mark COFFEE
FLOUR is used in the articles. In Greenliant, the applicant was the first and only
user of the term at issue, and similarly argued that the fact that the media articles
in the record were almost all about applicant was “strong evidence that the public
regard[ed] the term NANDRIVE as a trademark for Applicant’s goods.” 97 USPQ2d
at 1084. The Board rejected that argument and found NANDRIVE to be generic, even
though some of the uses of the term in the articles were ambiguous as to whether
they used NANDRIVE as a generic term or as a trademark. Here, unlike in
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Greenliant, there is nothing ambiguous about the uses of “coffee flour” as a generic
term in most of the articles in the record.
Second, Applicant argues that “[i]f the evidence of record does not show that
competitors use the term at issue, it creates doubt as to whether the term actually
primarily refers to a genus of goods or services and whether competitors can
effectively identify their goods or services without using that particular phrase,” and
that as “was the case in In re Trek 2000 Int’l Ltd., the Examining Attorney’s evidence
of record contains no examples of competitors or other third parties using the
Applicant’s mark.” 13 TTABVUE 15. Trek did not hold, however, that competitive
uses must exist for a term to be generic. Trek must be understood in conjunction with
the well-settled principle that being the first and only user of a generic term—even if
the public associates it with the first user—does not make an otherwise generic term
non-generic.42
In addition, the case is easily distinguishable on its facts. In Trek, the Board held
that “where the evidence does not show that competitors use the designation in issue,
this may create doubt, depending upon the totality of the record, as to whether a term
primarily refers to a genus of goods such that ‘sellers of competing brands cannot

42 See, e.g., Merrill Lynch, 4 USPQ2d at 1142 (“To allow trademark protection for generic
terms, i.e., names which describe the genus of goods being sold, even when these have become
identified with a first user, would grant the owner of the mark a monopoly, since a competitor
could not describe his goods as what they are.”); In re Preformed Prods. Co., 323 F.2d 1007,
139 USPQ 271, 273 (CCPA 1963) (exclusive use, even when coupled with “large sales volume
of such goods and its substantial advertising expenditure . . . cannot take the common
descriptive name of an article out of the public domain and give the temporarily exclusive
user of it exclusive rights to it, no matter how much money or effort it pours into promoting
the sale of the merchandise”) (citing J. Kohnstam, Ltd. v. Louis Marx & Co., 280 F.2d 437,
440 (CCPA 1960)).
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compete effectively without using the name to designate the product they are
selling.’” Trek, 97 USPQ2d at 1109 (emphasis added) (quoting Ty Inc. v. Softbelly’s
Inc., 353 F.3d 528, 69 USPQ2d 1213, 1215 (7th Cir. 2003)); see also KP Permanent
Make-Up, 72 USPQ2d at 1838 (“there [is] no indication that the [Lanham Act] was
meant to deprive commercial speakers of the ordinary utility of descriptive words”).
The record in Trek showed “use of the term THUMBDRIVE or THUMB DRIVE to
refer to a genus of goods” but also showed “the origin of the term as a trademark and
extensive use of the term as a trademark,” the applicant’s use “of other terminology
as the name of the goods, e.g., ‘external storage device,’” successful efforts by the
applicant to police the misuse of its claimed mark as a generic term, and no use of the
term by competitors “after ten years of these products being on the market . . . .” Id.
at 1112-13. The Board concluded, on the totality of that record, that “‘the evidence of
generic use is offset by applicant’s evidence that shows not only a significant amount
of proper trademark use but also trademark recognition’ by third parties.” Id. at 1113
(quoting In re America Online Inc., 77 USPQ2d 1618, 1623 (TTAB 2006)).
Unlike the record in Trek, the record here is not “mixed . . . on the question of
genericness.” Id. It shows use of “coffee flour” almost exclusively to refer to a genus
of flour made from coffee cherry skins, pulp, and pectin. The absence of competitive
uses of “coffee flour” generically is attributable to the fact that there are not yet any
competitors. We agree with the Examining Attorney that “this circumstance should
not prevent later competitors from using this shorthand generic designation to refer
to flour made from the coffee plant.” 15 TTABVUE 11. Applicant’s current status as
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the only user of “coffee flour” “does not justify registration if the only significance
conveyed by the term is that of the category of goods,” Greenliant, 97 USPQ2d at
1084, as it is here.
Third, Applicant argues that COFFEE FLOUR is registrable on the Supplemental
Register because it “describes Applicant’s product, but it does not define a major class
or kind of product.” 13 TTABVUE 12. This argument goes as follows:
Applicant’s mark does describe features of Applicant’s
goods. A consumer who sees the mark COFFEE FLOUR is
likely to recognize the overall nature of Applicant’s goods –
that it is a coffee product ground up into a powder like
flour. Applicant contends, however, that the consumer will
assume (incorrectly) that the product is made from coffee
beans, tastes or smells like coffee, or contains the drink
coffee. The mark is not, therefore, the genus for flour made
of the skins, pulp, and pectin of the coffee cherry. While
COFFEE FLOUR may describe the goods or convey
knowledge of the qualities or characteristics of the goods,
it does not “immediately and unequivocally” describe flour
made of the skins, pulp, and pectin of the coffee cherry, and
therefore, it is not generic.
13 TTABVUE 13.43
Applicant acknowledges that “a consumer who sees the mark COFFEE FLOUR is
likely to recognize the overall nature of Applicant’s goods – that it is a coffee product
ground up into a powder like flour.” 13 TTABVUE 13. This is essentially Applicant’s
confirmation that the term is the name for Applicant’s goods, i.e., that it is generic.
To insist that the test for genericism require that consumers also know all the precise

43 This argument actually contends that COFFEE FLOUR is misdescriptive of a feature of
Applicant’s goods because they will be perceived as being made from the coffee bean when
they are actually made from the coffee cherry. It is not necessary to consider this argument
because we find, on the basis of the record as a whole, that COFFEE FLOUR is generic. In
re Northland Aluminum Prods., Inc., 777 F.2d 1556, 227 USPQ 961, 963 (Fed. Cir. 1985).
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attributes of the product and how it is made demands too much. In any event, the
record here shows that the relevant purchasing public understands “coffee flour” to
refer specifically to flour made from the skin, pulp, and pectin of the coffee cherry
portion of the coffee plant. Applicant itself has communicated this meaning of the
term “coffee flour” to the public, and the articles in the record, from which we can
infer the public’s understanding of the term, show that this message has been
received and understood.
f. Summary of Analysis of the Relevant Purchasing Public’s
Understanding of the Meaning of COFFEE FLOUR

The record shows consistent use—by both Applicant and the public—of the words
“coffee flour” as a compound noun to refer to flour made from coffee cherry skins, pulp
and pectin, and, at best, minimal use—by Applicant or the public—of “coffee flour” as
a trademark (a brand name for a product identified by a separate generic term for
the goods). There is no evidence of Applicant’s or anyone else’s use of the alternative
generic terms suggested by Applicant, or any other separate generic term. “Coffee
flour” is variously referred to in the record as a new type of flour, a product, an
ingredient, a superfood, and the “new impact food for the world,” but never as the
brand name for a product identified by another generic term.
The record show that Applicant failed to develop and promulgate a generic term
other than “coffee flour” and “to educate the public to use some name other than the
term [it] wants to call [its] mark.” McCarthy, § 12:25. Applicant both actively and
tacitly encouraged the public’s generic use of “coffee flour.” Applicant used “coffee
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flour” as a generic term in its public-facing materials, and its principals used “coffee
flour” as a generic term in their interactions with the media.
The record also does not show that Applicant took any steps to have the media
correct their own generic uses of “coffee flour.” Applicant’s failure to police these
generic uses of its proposed mark undercuts its claim that the relevant purchasing
public will understand COFFEE FLOUR to be anything other than the generic term
for flour made from coffee cherries. Cf. Trek, 97 USPQ2d at 1112 (record included
examples of applicant’s policing of its asserted trademark, including “letters to and
responses from various media outlets, including PC Magazine’ and ‘The New York
Times,’ whereby they agreed not to use THUMBDRIVE in a generic manner.”);
Plyboo, 51 USPQ2d at 1640 (evidence of media use of applicant’s proposed mark
included evidence of correction of article using mark as a generic term).
Upon consideration of all of the evidence of record, we find that the Examining
Attorney demonstrated, by clear evidence of generic use, that “coffee flour” is
understood by the relevant purchasing public primarily to refer to flour made from
coffee cherry skins, pulp and pectin.
Decision: The refusal to register on the Supplemental Register is affirmed.