Organico Food Inc.

Trademark Trial and Appeal Board

Jul 18, 2018

No. 87296610 (T.T.A.B. Jul. 18, 2018)

This Opinion is not a
Precedent of the TTAB

Mailed: July 18, 2018

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Organico Food Inc.
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Serial No. 87296610
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Karin Segall and Deirdre A. Clarke of Leason Ellis LLP,
for Organico Food Inc.

Doritt Carroll, Trademark Examining Attorney, Law Office 116,
Christine Cooper, Managing Attorney.
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Before Ritchie, Greenbaum, and Lynch,
Administrative Trademark Judges.

Opinion by Lynch, Administrative Trademark Judge:

Organico Food Inc. (“Applicant”) seeks registration on the Principal Register of
the mark for the following goods:
Sauces; dipping sauces; marinades; Sriracha-based sauces; garlic-
based sauces; pasta sauces; salad sauces and dressings; yogurt-based
Serial No. 87296610
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sauces all made at least substantially in part from organic ingredients
in International Class 30.1

The Trademark Examining Attorney refused registration of Applicant’s mark
under Section 2(e)(1), 15 U.S.C. § 1052(e)(1), as merely descriptive of the identified
goods. After the Trademark Examining Attorney made the refusal final, Applicant
appealed, and we affirm the refusal to register for the reasons discussed below.
Section 2(e)(1) of the Trademark Act precludes registration of “a mark which,
(1) when used on or in connection with the goods [or services] of the applicant is
merely descriptive . . . of them.” 15 U.S.C. § 1052(e)(1). A term is merely descriptive
within the meaning of the statute “if it immediately conveys knowledge of a quality,
feature, function, or characteristic of the goods or services with which it is used.” In
re Chamber of Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed.
Cir. 2012) (quoting In re Bayer AG, 488 F.3d 960, 82 USPQ2d 1828, 1831 (Fed. Cir.
2007)); see also In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1575 (Fed. Cir.
2015).
Descriptiveness must be assessed “in relation to the goods for which registration
is sought, the context in which it is being used, and the possible significance that
the term would have to the average purchaser of the goods [or services] because of
the manner of its use or intended use.” Bayer AG, 82 USPQ2d at 1831 (citing In re
Abcor Dev., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978)). The descriptiveness
analysis concentrates on the identification of goods set forth in the application. See

1 Application Serial No. 87296610 has a filing date of January 11, 2017, and is based on
Applicant’s assertion of a bona fide intent to use the mark in commerce under Section 1(b),
15 U.S.C. § 1051(b).
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In re Cordua Rests., Inc. 823 F.3d 594, 118 USPQ2d 1632, 1636 (Fed. Cir. 2016)
(quoting Octocom Sys., Inc. v. Houston Computer Servs., Inc., 918 F.2d 937, 16
USQP2d 1783, 1787 (Fed. Cir. 1990)). If a mark is descriptive of any of the goods in
a class for which registration is sought, it is proper to refuse registration as to the
entire class. In re Chamber of Commerce of the United States, 675 F.3d 1297, 102
USPQ2d 1217, 1219 (Fed. Cir. 2012).
“Under the doctrine of foreign equivalents, foreign words from common, modern
languages are translated into English to determine … descriptiveness….” Palm Bay
Imps., Inc. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73
USPQ2d 1689, 1696 (Fed. Cir. 2005); In re Thomas, 79 USPQ2d 1021, 1024 (TTAB
2006). The doctrine “is not an absolute rule and should be viewed merely as a
guideline” that applies when it is likely that “the ordinary American purchaser
would ‘stop and translate [the word] into its English equivalent.’” Palm Bay, 73
USPQ2d at 1696 (quoting In re Pan Tex Hotel Corp., 190 USPQ 109, 110 (TTAB
1976)).
There is no dispute that the Spanish word “organico” translates to “organic” in
English,2 that Spanish is a common, modern language, and that Applicant’s goods
are organic (as stated in the identification of goods). However, Applicant contends
that the doctrine of foreign equivalents does not apply because consumers would not
perceive its mark as the word “organico.” Rather, according to

2 TSDR July 11, 2017 Office Action at 2 (Collins Spanish to English Dictionary,
collinsdictionary.com, entry for “organico”); April 5, 2017 Office Action at 2
(SpanishDict.com entry for “organico”).
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Applicant, its mark is a “design mark” consisting of literal components “Orga” and
“NicO” with a diamond design, and the capitalization of certain letters that “gives
the mark visual symmetry and a distinct commercial impression.”3 Applicant
concedes that the mark is suggestive, but argues that it is not descriptive, as “a play
on the word ‘organic’ and the name of the principal of the applicant, Nico Descour.”4
Applicant cites in support In re Grand Metropolitan Foodservice, Inc., 30 USPQ2d
1974 (TTAB 1994) (holding the stylized mark MUFFUNS not merely descriptive of
muffins because it projects a dual meaning) and In re Tea and Sympathy, Inc., 88
USPQ2d 1062 (TTAB 2008) (holding THE FARMACY not merely descriptive of
retail store services featuring natural herbs and organic products because it’s not
just a misspelling of “pharmacy” but also a play on the “farm-fresh characteristics of
applicant’s herbs and organic products”).5
The Examining Attorney counters that, unlike in the cases cited by Applicant
wherein the marks featured misspellings to tip consumers off to a double entendre,
does not vary from the spelling of the Spanish word “organico,” and
consumers would perceive it as such. According to the Examining Attorney, the
space and hyphen-like design do not suffice to create a double entendre. The
Examining Attorney also points to the lack of evidence that consumers would be
aware that Applicant’s owner is named “Nico.” Ultimately, whereas the marks in

3 7 TTABVUE 6 (Applicant’s Brief).
4 Id. at 8.
5 The additional case cited by Applicant in its Reply Brief, In re United Services Life Ins.
Co., 181 USPQ 655 (TTAB 1973), is inapposite as its holding concerns whether the stylized
mark in the specimen matched the “typed drawing” in the application.
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the cited cases readily convey wordplay, the Examining Attorney argues that
consumers would understand Applicant’s mark merely as “organico,” describing a
feature of Applicant’s organic goods.
Applicant’s mark consists of letters that spell the Spanish word “organico.”
Although a space and a very small diamond-shaped design separate the components
“Orga” and “NicO,” this presentation does not detract from the perception of the
mark as “organico” because neither of these terms has a commonly recognized
meaning, whereas “organico” as a whole does. The minimal design element is so
small and insignificant that it does not change the impression of the mark as the
word “organico.” While Applicant contends that consumers would understand the
“NicO” portion of its mark as a reference to its owner’s nickname, the record
contains no evidence to support such recognition. Neither is there any evidence or
contention in the record that “Orga” has any meaning. Moreover, we find
unpersuasive Applicant’s argument that the capitalization of the “N” contributes to
the impression of a name, because the capitalization of the “O” at the end is not in
keeping with the presentation of a name. Rather, we agree with Applicant only that
the use of uppercase letters at the beginning, end, and the middle of the mark
creates some sense of visual symmetry. Considering the mark in its entirety, we
find that Spanish-speaking U.S. consumers would stop and translate it as “organic.”
In addition, we find that looks and sounds very similar to the word
or term “organic,” contributing to the relevant consumer’s tendency to stop and
translate, as well as to consumer understanding of the mark as the descriptive word
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“organic.” In Bayer AG, 82 USPQ2d at 1831-32, the Court affirmed a mere
descriptiveness refusal of ASPIRINA (the Spanish word for “aspirin”) for analgesics
in part because “‘[t]he mere addition of the letter ‘A’ at the end of the generic term
‘aspirin’ is simply insufficient to transform ASPIRINA into an inherently distinctive
mark for analgesics’” (quoting the underlying TTAB decision). This same logic
supports the mere descriptiveness refusal of Applicant’s mark.
The record in this case includes ample evidence of the descriptiveness of
“organico”/“organic” in the context of goods such as Applicant’s. A third-party
registration ORGANICO BELLO for sauces includes a disclaimer of “organico,”6 and
other third-party registrations for sauces include disclaimers of “organic.”7 Many
third parties in the sauce industry use “organic” descriptively. For example, website
evidence promotes “beetnik Organic” pasta sauces “made with organic meats.”8 In
addition, various “Bertolli Organic Pasta Sauces” are featured on its website,9 and
Newman’s Own advertises its “Organic Sockarooni Pasta Sauce.”10 Another
webpage features “Annie’s Homegrown Organic Ketchup” and “Annie’s Homegrown
Organic Yellow Mustard,”11 while the Annie’s website also promotes “Organic
Annie’s Original BBQ Sauce,” “Annie’s Organic Smoky Maple BBQ Sauce,” and

6 TSDR April 5, 2017 Office Action at 8-9 (Reg. No. 4461532),
7 TSDR July 11, 2017 Office Action at 6-25.
8 TSDR April 5, 2017 Office Action at 16 (beetnikfoods.com).
9 Id. at 31-33 (villabertolli.com).
10 Id. at 37 (newmansown.com).
11 Id. at 19 (soap.com).
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“Annie’s Organic Dijon Mustard.”12 “Kinder’s Organic Mild BBQ Sauce,”13
“Organicville Marinara Organic Pasta Sauce,”14 “Organic Full Circle Tomato
Ketchup” and other organic sauces,15 and “Arizona Gunslinger Organic Sauces”16
are other example of descriptive use.
Overall, the evidence shows that within Applicant’s industry, “organic” describes
a feature of sauces, as Applicant’s own identification of goods reflects.
Applicant argues that “[i]t would take some imagination for consumers … to
understand that the goods are sauces and condiments.”17 However, applying the
appropriate standard whether someone familiar with the identified goods will
understand the mark to convey information about them, we find that the mark
immediately and directly conveys that Applicant’s sauces feature organic
ingredients. See DuoProSS Meditech Corp. v. Inviro Med. Devices Ltd., 695 F.3d
1247, 103 USPQ2d 1753, 1757 (Fed. Cir. 2012); Abcor Dev., 200 USPQ at 218; In re
Remacle, 66 USPQ2d 1222, 1224 (TTAB 2002).
Thus, consumers would immediately understand , when used on
Applicant’s identified sauces, to describe a key feature of them. While Applicant
urges us to resolve doubt in its favor, given the record, we have no such doubt to
resolve.

12 Id. at 24-28 (annies.com).
13 Id. at 34 (kindersbbq.com).
14 TSDR July 11, 2017 Office Action at 41 (organicvillefoods.com)
15 Id. at 51-53 (fullcirclefoods.com).
16 Id. at 55-57 (azgunslinger.com).
17 7 TTABVUE 7 (Applicant’s Brief).
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Decision: The refusal to register Applicant’s mark as merely descriptive is
affirmed.