Plata Wine Partners, LLC

Trademark Trial and Appeal Board

Aug 22, 2019

87292254 (T.T.A.B. Aug. 22, 2019)

Mailed: August 22, 2019
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
————
In re Plata Wine Partners, LLC
_____

Serial No. 87292254
_____

John B. Dawson of Carle, Mackie, Power & Ross LLP,
for Plata Wine Partners, LLC.
Samuel R. Paquin, Trademark Examining Attorney, Law Office 101,
Ronald R. Sussman, Managing Attorney.
_____

Before Bergsman, Pologeorgis, and English,
Administrative Trademark Judges.

Opinion by Pologeorgis, Administrative Trademark Judge:
Plata Wine Partners, LLC (“Applicant”) seeks registration of the designation BIG
SIX (in standard characters) for “wines” in International Class 33.
The application originally sought registration on the Principal Register, and was
filed under Section 1(b) of the Trademark Act, 15 U.S.C. § 1051(b), based on
Applicant’s claim that it had a bona fide intention to use the proposed mark in
commerce. The Examining Attorney initially refused registration under Section
2(e)(1) of the Trademark Act, 15 U.S.C. § 1052(e)(1), on the ground that the term BIG
SIX is “a term of art in the wine industry” and as such is merely descriptive of
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB
Serial No. 87292254
-2-
Applicant’s goods.1 In the same initial Office Action, the Examining Attorney also
found that Applicant’s applied-for mark appears to be generic in connection with the
identified goods and, therefore, incapable of functioning as a source-identifier for
Applicant’s goods.2 As such, the Examining Attorney advised that neither an
amendment to proceed under Section 2(f) of the Trademark Act, 15 U.S.C. § 1052(f),
nor an amendment to the Supplemental Register could be recommended.3
In response to the Examining Attorney’s initial Office Action, Applicant, in
addition to arguing against the mere descriptiveness refusal, disagreed with the
assertion that Applicant’s applied-for mark is generic of Applicant’s goods.4 While not
conceding that the applied-for mark is merely descriptive and “in an abundance of
caution,” Applicant filed an Amendment to Allege Use, seeking to amend its
application to the Supplemental Register.5
In a subsequent Office Action, the Examining Attorney refused registration on the
Supplemental Register under Trademark Act Sections 23(c) and 45, 15 U.S.C. §
1091(c) and 1127, on the ground that BIG SIX is generic for “wines” and thus
incapable of distinguishing Applicant’s goods.6 Additionally, the Examining Attorney,

1 March 30, 2017 Office Action.
2 Id.
3 Id.
4 October 2, 2017 Response to Office Action.
5 October 2, 2017 Amendment to Allege Use. We construe Applicant’s request to amend its
application to seek registration on the Supplemental Register as an alternative request in
the event the mere descriptiveness refusal is affirmed.
6 October 18, 2017 Office Action.
Serial No. 87292254
-3-
in the alternative, refused registration on the ground that Applicant’s applied-for
mark is merely descriptive of the identified goods. After the Examining Attorney
made the genericness and mere descriptiveness refusals final, Applicant appealed to
this Board and filed a request for reconsideration, which was denied.
Both Applicant and the Examining Attorney have filed briefs. We affirm the
refusals to register.7
I. Preliminary Issue – Evidentiary Objection
We first turn to an evidentiary objection lodged by the Examining Attorney
regarding evidence presented by Applicant for the first time with its appeal brief.8
Specifically, the Examining Attorney objects to the inclusion of sales and revenue
information and an affidavit from Applicant’s attorney.9
It is well-settled that the record in an ex parte proceeding should be complete prior
to appeal. Trademark Rule 2.142(d); 37 CFR § 2.142(d). Exhibits or other evidentiary
material that are attached to or included with a brief but not made of record during
examination are untimely, and will not be considered. See In re Fitch IBCA, Inc., 64
USPQ2d 1058, 1059 n.2 (TTAB 2002); see also TRADEMARK TRIAL AND APPEAL BOARD
MANUAL OF PROCEDURE (“TBMP”) §§ 1203.02(e) and 1207.01 (2019). To the extent
Applicant wished to introduce additional evidence after its appeal had been filed,
Applicant should have filed a written request with the Board to suspend the appeal

7 All TTABVUE and Trademark Status and Document Retrieval (“TSDR”) citations reference
the docket and electronic file database for Application Serial No. 87292254. All citations to
the TSDR database are to the downloadable .PDF version of the documents.
8 Examining Attorney’s Brief, p. 13, 9 TTABVUE 13.
9 Id.
Serial No. 87292254
-4-
and remand the application for further examination pursuant to Trademark Rule
2.142(d). Applicant did not do so. Accordingly, the Examining Attorney’s evidentiary
objection is sustained, and we give the new evidence submitted with Applicant’s
appeal brief no further consideration in our analysis.
II. Genericness - Applicable Law
We first address the genericness refusal. A mark proposed for registration on the
Supplemental Register must be capable of distinguishing the applicant's goods or
services. 15 U.S.C. § 1091. “Generic terms do not so qualify.” In re Emergency Alert
Sols. Grp., LLC, 122 USPQ2d 1088, 1089 (TTAB 2017); see also Real Foods Pty Ltd.
v. Frito-Lay N. Am., Inc., 906 F.3d 965, 128 USPQ2d 1370, 1372 n.3 (Fed. Cir. 2018)
(citing In re Am. Fertility Soc’y, 188 F.3d 1341, 51 USPQ2d 1832, 1833 (Fed. Cir.
1999)); In re Dial-A-Mattress Operating Corp., 240 F.3d 1341, 57 USPQ2d 1807, 1810
(Fed. Cir. 2001) (generic terms “are by definition incapable of indicating a particular
source of the goods or services”).
The Office must demonstrate a term is generic by “clear evidence” of generic use.
See In re Hotels.com LP, 573 F.3d 1300, 91 USPQ2d 1532, 1533 (Fed. Cir. 2009).
“[R]egistration is properly refused if the word is the generic name of any of the goods
or services for which registration is sought.” In re Cordua Rests., Inc., 823 F.3d 594,
118 USPQ2d 1632, 1638 (Fed. Cir. 2016) (quoting 2 J. Thomas McCarthy, MCCARTHY
ON TRADEMARKS AND UNFAIR COMPETITION § 12:57 (4th ed. 2016)).
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,
Serial No. 87292254
-5-
1830 (Fed. Cir. 2015) (citing H. Marvin Ginn Corp. v. Int’l Ass’n of Fire Chiefs, Inc.,
782 F.2d 987, 228 USPQ 528, 530 (Fed. Cir. 1986)). There is a two-part test used to
determine whether a designation is generic: (1) what is the genus (class or category)
of goods or services at issue?; and (2) does the relevant public understand the
designation primarily to refer to that genus of goods or services? Princeton Vanguard,
114 USPQ2d at 1803 (citing Marvin Ginn, 228 USPQ at 530); Couch/Braunsdorf
Affinity, Inc. v. 12 Interactive, LLC, 110 USPQ2d 1458, 1462 (TTAB 2014). “The
critical issue in genericness cases is whether members of the relevant public
primarily use or understand the term sought to be protected to refer to the genus of
goods or services in question.” Marvin Ginn, 228 USPQ at 530.
Any term that the relevant public uses or understands to refer to the genus of
goods, or a key aspect or subcategory of the genus, is generic. Royal Crown Co., Inc.
v. Coca-Cola Co., 892 F.3d 1358, 127 USPQ2d 1041, 1046-47 (Fed. Cir. 2018). “[A]
term is generic if the relevant public understands the term to refer to part of the
claimed genus of goods or services, even if the public does not understand the term to
refer to the broad genus as a whole.” Cordua, 118 USPQ2d at 1638 (holding
CHURRASCOS, a word that is generic for a type of grilled meat, to be generic for
restaurant services because it referred to a key aspect of those services); see also In
re Nordic Naturals, Inc., 755 F.3d 1340, 111 USPQ2d 1495 (Fed. Cir. 2014)
(CHILDREN’S DHA generic for DHA supplements for children); In re Northland
Aluminum Prods., Inc., 777 F.2d 1556, 227 USPQ 961 (Fed. Cir. 1985) (BUNDT
generic for ring cake mixes, i.e., the subcategory “bundt cakes.”).
Serial No. 87292254
-6-
“Evidence of the public’s understanding of the term may be obtained from any
competent source, such as purchaser testimony, consumer surveys, listings in
dictionaries, trade journals, newspapers and other publications.” Royal Crown, 127
USPQ2d at 1046 (quoting In re Merrill Lynch, Pierce, Fenner, and Smith Inc., 828
F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987)); see also Cordua, 118 USPQ2d at
1634; Princeton Vanguard, 114 USPQ2d at 1830; In re Reed Elsevier Props. Inc., 482
F.3d 1376, 82 USPQ2d 1378, 1380 (Fed. Cir. 2007) (finding third-party websites
competent sources for determining what the relevant public understands mark to
mean).
A. What is the Genus of the Goods at Issue?

Our first task is to determine the proper genus. In defining the genus, we
commonly look to the identification of goods in the application. See Reed Elsevier, 82
USPQ2d at 1380; Magic Wand Inc. v. RDB Inc., 940 F.2d 638, 19 USPQ2d 1551, 1552
(Fed. Cir. 1991) (a proper genericness inquiry focuses on the identification set forth
in the application or certificate of registration); In re Serial Prodcast, LLC, 126
USPQ2d 1061, 1063 (TTAB 2018) (proper genus generally is “set forth by the
recitation of services in each subject application.”). Applicant has identified its goods
as “wines.” There is no dispute that the identification of goods adequately defines the
genus.
B. Who are the Relevant Purchasers?
The second part of the Marvin Ginn test is whether the term sought to be
registered is understood by the relevant public primarily to refer to that genus of
Serial No. 87292254
-7-
goods or services. “The relevant public for a genericness determination is the
purchasing or consuming public for the identified goods.” Frito-Lay N. Am., Inc. v.
Princeton Vanguard LLC, 124 USPQ2d 1184, 1187 (TTAB 2017) (citing Magic Wand,
19 USPQ2d at 1552); Sheetz of Del., Inc. v. Doctor’s Assocs. Inc., 108 USPQ2d 1341,
1351 (TTAB 2013)). Because there are no restrictions or limitations to the channels
of trade or classes of consumers for Applicant’s identified goods, the relevant
consuming public consists of the public at large, namely, ordinary consumers who
purchase and imbibe wine or who purchase wine for others.
C. How does the Relevant Public Perceive BIG SIX?
The Examining Attorney argues that the phrase BIG SIX refers to six common
types of wine, namely, Riesling, Sauvignon Blanc, Chardonnay (white), Pinot Noir
(red), Merlot, and Cabernet Sauvignon and which the Examining Attorney contends
comprise approximately 80 percent of the world’s wines.10 In support of his argument,
the Examining Attorney submitted excerpts from numerous websites, as well as
results from a Google search of “‘big six’ wine,” showing use of the designation BIG
SIX. The evidence is summarized below:11
• the Rochester, NY Democrat & Chronicle website
(www.democratandchronicle.com)12 - “However, for some reason, there

10 Id. at p. 6, 9 TTABVUE 6.
11 We recognize that the evidence submitted by the Examining Attorney does not identify the
identical type of wines or varietal of grapes under the BIG SIX designation. For example, in
some instances, Syrah is substituted for Merlot, Pinot Grigio is substituted for Sauvignon
Blanc, and Zifandel is substituted for Riesling. While the evidence is inconsistent as to what
wines or varietal grapes comprise the BIG SIX, this does not detract from our analysis as to
whether the designation is generic for “wines” in general.
12 March 30, 2017 Office Action, TSDR, p. 4.
Serial No. 87292254
-8-
seems to be universal agreement among wine educators that the ‘Big
Six,’ as they are fondly called, are a great place to start when learning
about wine flavors and styles. Someone once told me that once you
master the Big Six, you are on your way to understanding 80 percent of
the world’s wines. … Three of the grapes are white: Riesling, Sauvignon
blanc and Chardonnay. Three of the grapes are red: Pinot [N]oir, Merlot
and Cabernet Sauvignon.”;

• (www.lakeandsumterstyle.com)13 - An article titled “THE WINE
WORLD’S BIG SIX.” The article states: “Walk into any wine shop or
supermarket and you can’t miss the Big Six – the grapes that Master
Sommelier Andrea Immer Robinson calls the ‘power elite.’ Although
there are hundreds of grape varieties used in winemaking, these six –
Chardonnay, Sauvignon Blanc, Riesling, Cabernet Sauvignon, Merlot,
and Pinot Noir – are the nobility in the wine world because of their
reputations for making outstanding wines. … .”

• (www.grapehaven.com)14 - An article titled “‘BIG SIX’ Wine Grape
Varieties.” “The Big Six Wine Grape Varieties are: (white) Chardonnay,
Riesling, Sauvignon Blanc and (red) Cabernet Sauvignon, Merlot and
Pinot Noir. These Big Six Wine Grape Varieties make up about 80% of
all wines made from around the world.”

• (www.foodnetwork.com)15 - An article titled “The Top Six Wine
Varietals.” “Learning the basics of wine begins with becoming familiar
with the big six varietals, which are the grapes that comprise the
majority of the world’s wines.” The article discusses the attributes of the
big six wines which the article identified as Chardonnay, Sauvignon
Blanc, Riesling, Cabernet Sauvignon, Merlot and Pinot Noir.

• (www.realsimple.com)16 – An article titled “Basic Wine Varieties A guide
to the big six – the most common grape varieties found in the United
States – and foods to pair them with.”

• (www.cityweekly.net)17 – An article titled “The Six Pack, Part 1” – “Wine
columns like this one can, at times, get a bit technical and wine geeky.
So, I though this week we’d go back to the basics and talk about the

13 Id., TSDR p. 5.
14 Id., TSDR p. 6.
15 Id., TSDR p. 7.
16 Id., TSDR pp. 8-9.
17 October 18, 2017 Office Action, TSDR p. 6.
Serial No. 87292254
-9-
wines that constitute the large majority of all wines sold and consumed.
There are six of them – the big six wine-grape varietals. … So, what are
the six big varietals” There are three white grape varietals
(Chardonnay, Sauvignon Blanc and Riesling) and three reds (Cabernet
Sauvignon, Merlot and Pinot Noir.) Usually, with the big six varietals,
they are easy to identify in the wine store because the wine bottles say
‘Chardonnay,’ ‘Merlot,’ ‘Pinot Noir’ and so on.”

Also from the same website an article titled “The Six-Pack, Part 2
Getting to know the rest of the big six wine grapes.”

• (www.vino-sphere.com)18 – An article titled “Big Six Grape Varieties” –
“We have been traveling the globe – so while we recover from jet lag, we
are republishing one of our first posts. A look at the Big Six wine
grapes.”

• (www.miamidadeculinary.com)19 – Summarizing a culinary course
offered: “Becoming an Expert with the Big Six – In this class we focus
on six wines to give participants an advanced knowledge when
Ordering or discussing these wines. We will taste Cabernet Sauvignon,
Pinot Noir and Syrah for Reds and Chardonnay, Sauvignon Blanc and
Riesling for Whites and discuss food pairings when ordering or cooking
at Home.”

• (www.wine-girl.net)20 – Advertisement for wine tasting program – “I will
be pouring the big six grapes. The tasting will be Riesling, Pinot Grigio,
Chardonnay, Pinot Noir, Cabernet Sauvignon, and Syrah. The big six
wine tasting will get you to: taste the difference between each grape
varietal, taste the difference between light, medium, and full bodied
wines. ….”

• (www.kobrandwineandspirts.com)21 – Advertisement for tasting
program – “KOBRAND EDUCTAION SERIES 101 – BIG SIX
TASTING – Interactive wine tasting and evaluation that incorporates
common varietals and learnings from the previous KES 101 modules.”

18 Id., TSDR p. 8.
19 Id., TSDR p. 9
20 Id., TSDR p. 10.
21 Id., TSDR p. 11.
Serial No. 87292254
-10-
• Excerpt from the book titled Great Wine Made Simple: Straight Talk
from a Master Sommelier: “The ‘Power Elite’ of the Wine World – The
Big Six Wine Grapes. There are hundreds of wine grapes, but we’re
going to focus on just a handful of them, the white and red grape types
that I call the Big Six.”22

• Excerpt from the book titled Wine for Dummies: “The number of
wineries in California has exploded to more than 2,000, and the map of
wine regions has expanded to include pockets of vineyard land that were
literally off the map only 15 years ago. What’s more, California now
grows dozens of grape varieties beyond its traditional Big Six fine-wine
mainstays (Chardonnay, Sauvignon Blanc, Cabernet Sauvignon,
Merlot, Pinot Noir, and Zinfandel).”23

• (www.wiley.com)24 – Advertisement for book titled California Wine for
Dummies – Description of book includes the following: “Open the Bottle
– become fluent in the Big Six: Chardonnay, Sauvignon Blanc,
Cabernet Sauvignon, Merlot, Pinot Noir, and Zifandel.”

• (www.wine-tasting-reviews.com)25 Article titled “What Are the Big Six
Wine Grapes?” – “If you are going to learn very much about wine, you
need to learn about – and get to know – the so-called ‘Big Six’ wine or
grape varieties. The Big Six wine grapes are: Riesling, Sauvignon
Blanc, Chardonnay, Pinot Noir, Merlot, and Cabernet Sauvignon.”

• (www.learningwithexperts.com)26 Advertisement for course on wines
describing it as an “[i]ntro to the ‘Big 6’ The best foundation for learning
about wine is the Big Six grapes: the 3 white grapes and 3 red grapes.”

• (www.justwineapp.com)27 Article titled Wine Club Series “The Big Six”
featuring discussion on Cabernet Sauvignon.

22 Id., TSDR p. 4.
23 Id., TSDR p. 5.
24 May 3, 2018 Final Office Action, TSDR p. 6.
25 Id., TSDR p. 7.
26 Id., TSDR p. 8.
27 Id., TSDR p. 9.
Serial No. 87292254
-11-
• (www.inforum.com)28 Article titled “World of Wine: Knowing the big six
varietals of the wine word.” “Most have been mentioned in previous
World of Wine columns, but I thought this would be a good opportunity
to cover each of the ‘Big Six’ on the wine world. Wines in America and
in most of the southern hemisphere are labeled with varietal names of
grape. While there are hundreds of wine grapes, we seems [sic] to focus
on Riesling, sauvignon blanc, Chardonnay, pinot noir, merlot and
cabernet sauvignon. These varietals make up about 80 percent of all the
wines made around the word.”

• (www.winecentury.com)29 – website for wine enthusiasts that states,
among other things: “Uncommon Grape Varieties? The common grape
varieties are typically considered the ‘big six.’ Cabernet Sauvignon,
Merlot, Pinot Noir, Chardonnay, Sauvignon Blanc and Riesling.”

• (www.savannahwinecellar.com)30 – website of retail store selling wine
offering a class on wine: “Class Forming! Intro to Wine: The Big Six …
We designed this class to be a fun way to learn about the six most
common grape grape [sic] varieties. By trying these wines sides [sic] by
side, it give you the whole picture of the different body styles as well as
the flavors of the Big Six.”

• (www.balabanswine.com)31 – website of wine retailer offering a class on
wines titled: “The ‘Big Six’ Grape Varietals.”

• (www.chefstablecos.com)32 - website of third party offering a class on
wines titled: “Wine 101: The Big Six.” “The ‘Big Six’ Grape Varietals.”
“More than 80% of the quality wine produced in the world is from only
6 varietals. Learn the characteristics of these, and you’ll have a handle
on most of the wine out there! We’ll taste and compare Riesling,
Sauvignon Blanc, Chardonnay, Pinot Noir, Merlot and Cabernet
Sauvignon.”

28 Id., TSDR p. 10.
29 Id., TSDR p. 11.
30 Id., TSDR p. 12.
31 Id., TSDR p. 13.
32 Id., TSDR p. 14.
Serial No. 87292254
-12-
In traversing the refusal, Applicant argues that the designation BIG SIX refers to
grape varietals used to make wine and not as a generic designation for wine itself.33
We find Applicant’s argument unpersuasive. The ample amount of evidence
submitted by the Examining Attorney clearly demonstrates that the designation BIG
SIX is used interchangeably to identify both the types of grapes used to ferment wine,
as well as the types of wine produced by such grapes. Indeed, it is common knowledge
that when one orders a glass of wine, they generally do not ask for a glass of white
wine comprising the chardonnay varietal grape; instead, they merely order a glass of
chardonnay. However, even assuming arguendo that the designation BIG SIX only
refers to the varietal of grapes used to make wine, the designation would still be
generic for wine because the generic name of an ingredient of the goods is incapable
of identifying and distinguishing their source and is thus unregistrable on either the
Principal or Supplemental Register. See Cordua,118 USPQ2d at 1637-38 (affirming
the Trademark Trial and Appeal Board’s holding of CHURRASCOS (a type of grilled
meat) generic for restaurant services)); TRADEMARK MANUAL OF EXAMINING
PROCEDURE (“TMEP”) § 1209.03(v) (Oct. 2018); see also A.J. Canfield Co. v.
Honickman, 808 F.2d 291, 292, 1 USPQ2d 1364, 1365 (3d Cir. 1986) (holding
CHOCOLATE FUDGE generic for diet sodas); In re Ricci-Italian Silversmiths, Inc.,
16 USPQ2d 1727, 1729-30 (TTAB 1990) (holding ART DECO generic for flatware); In
re Hask Toiletries, Inc., 223 USPQ 1254, 1255 (TTAB 1984) (holding HENNA ‘N’
PLACENTA generic for hair conditioner).

33 Applicant’s Appeal Brief, pp. 5-6, 7 TTABVUE 9-10.
Serial No. 87292254
-13-
Applicant also argues that because the designation BIG SIX is not found in the
dictionary or in wine glossaries, it cannot be generic for wines.34 Applicant is
mistaken. The fact that a word or term is not found in the dictionary is not controlling
on the question of registrability when the word or term has a well understood and
recognized meaning, as the evidence of record demonstrates. See In re Gould Paper
Corp., 834 F.2d 1017, 5 USPQ2d 1110 (Fed. Cir. 1987) [SCREENWIPE held generic
for wipes that clean computer and television screens although not found in
dictionary]; In re Gen’l Permanent Wave Corp., 118 F.2d 1020, 49 USPQ 184, 186
(CCPA 1941) (“Because appellant has combined two common English words, which
in combination are not found in the dictionaries, is wholly immaterial.”); In re
Planalytics, Inc., 70 USPQ2d 1453, 1456 (TTAB 2004) (GASBUYER held merely
descriptive, no dictionary definition of term); In re Tower Tech Inc., 64 USPQ2d 1314
(TTAB 2002) (SMARTOWER merely descriptive, no dictionary definition of term); see
also TMEP § 1209.03(b). The evidence of record clearly shows the wording BIG SIX
being used generically for wines or varietal grapes used to make wine by a number of
third parties.
Finally, Applicant argues that consumers view the designation BIG SIX as a
source indicator for its wines.35 In support of its argument, Applicant has submitted
(1) the results of a Google search for the phrase “BIG SIX WINE” purportedly showing
that the consuming public overwhelmingly recognizes the phrase BIG SIX as

34 Id. at p. 6, 7 TTABVUE 10.
35 Id. at 8-10, 7 TTABVUE 12-14.
Serial No. 87292254
-14-
referring to a specific brand of wine Applicant produces,36 and (2) consumer reviews
of its wines sold under the BIG SIX moniker.37
We do not find the Google search results submitted by Applicant to be very
probative in our analysis since the printouts are too truncated to provide context in
which the designation BIG SIX is used on the listed web pages. See In re Bayer
Aktiengesellschaft, 488 F.3d 960, 967, 82 USPQ2d 1828, 1833 (Fed. Cir. 2007)
(GOOGLE search results that provided very little context of the use of ASPIRINA
deemed to be “of little value in assessing the consumer public perception of the
ASPIRINA mark.”); In re Thomas Nelson, Inc., 97 USPQ2d 1712, 1715 (TTAB 2011)
(“search summary of results from the Google search engine” given no consideration);
In re Tea and Sympathy, Inc., 88 USPQ2d 1062, 1064 n.3 (TTAB 2008) (truncated
GOOGLE search results entitled to little probative weight without additional
evidence of how the searched term is used); In re Fitch IBCA Inc., 64 USPQ2d 1058,
1060 (TTAB 2002) (noting that “[e]vidence of actual use of a phrase by a website has
far greater probative value” than a search summary); see also TMEP § 710.01(b).
Even if Applicant had provided the full search results, such results would not
necessarily demonstrate consumer perception of the phrase BIG SIX as a source
indicator of Applicant’s wines because there is no additional evidence showing
whether the listed web pages are still operative or the extent to which consumers
have viewed the individual web pages. We further note that many of the Google

36 Applicant’s November 5, 2018 Request for Reconsideration, TSDR pp. 20-30.
37 Applicant’s April 18, 2018 Response to Office Action, Exhs. M & N, TSDR pp. 69-80.
Serial No. 87292254
-15-
search results, even in their truncated form, appear to support the Examining
Attorney’s genericness refusal, i.e., they seem to show the use of the designation BIG
SIX generically for wines or the grape varietals that are the ingredients for wine. As
example:38

As for the consumer reviews, only one refers to the designation BIG SIX as a
source indicator for Applicant’s wines. As such, it is unclear from this evidence
whether consumers recognize the designation BIG SIX as an indicator of source for
Applicant’s wines or whether they view the phrase generically or descriptively as a
particular type or variety of wine.
D. Conclusion
Taken as a whole, the evidence of record clearly indicates that the relevant public

38 Id., TSDR pp. 20-22.
Serial No. 87292254
-16-
would understand the designation BIG SIX primarily to refer to “wines” or a key
aspect, type or ingredient of “wines.” As such, the term is generic “and should be freely
available for use by competitors.” In re Cent. Sprinkler Co., 49 USPQ2d 1194, 1199
(TTAB 1998). See generally Cordua, 118 USPQ2d at 1635; Marvin Ginn, 228 USPQ
at 530; In re 1800Mattress.com, 92 USPQ2d 1682, 1685 (Fed. Cir. 2009).
III. Mere Descriptiveness – Applicable Law
Although we have found the applied-for mark to be generic, we consider the
Examining Attorney’s alternative refusal of mere descriptiveness. A designation is
merely descriptive under Section 2(e)(1) of the Trademark Act if it immediately
conveys knowledge of a quality, feature, function, or characteristic of the goods or
services with which it is used. See In re Chamber of Commerce of the U.S., 675 F.3d
1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012). The wording need not immediately
convey an idea of each and every specific feature of the applicant’s goods or services
in order to be considered merely descriptive; it is enough that the terminology
describes one significant attribute or function of the goods or services. See In re
H.U.D.D.L.E., 216 USPQ 358, 359 (TTAB 1982); In re MBAssociates, 180 USPQ 338,
339 (TTAB 1973). Whether a mark is merely descriptive is determined not in the
abstract, but in relation to the goods for which registration is sought, the context in
which it is being used on or in connection with the goods, and the possible significance
that the mark would have to the average purchaser of the goods because of the
manner of its use. In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
Serial No. 87292254
-17-
Furthermore, a term that describes an ingredient of the goods is merely
descriptive. See In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574 (Fed. Cir. 2015)
(holding NOPALEA merely descriptive of dietary and nutritional supplements
containing nopal juice); In re Keebler Co., 479 F.2d 1405, 178 USPQ 155 (C.C.P.A.
1973) (holding RICH ‘N CHIPS merely descriptive of chocolate chip cookies); In re
Andes Candies Inc., 478 F.2d 1264, 178 USPQ 156 (C.C.P.A. 1973) (holding CREME
DE MENTHE merely descriptive of candy); In re Entenmann’s, Inc., 15 USPQ2d 1750
(TTAB 1990) (holding OATNUT merely descriptive of bread containing oats and
hazelnuts); Flowers Indus., Inc. v. Interstate Brands Corp., 5 USPQ 2d 1580 (TTAB
1987) (holding HONEY WHEAT merely descriptive of bread containing honey and
wheat); see also TMEP § 1209.01(b).
Here, the record leaves no doubt that the designation BIG SIX is merely
descriptive of Applicant’s wines. The designation clearly describes a feature or
characteristic of Applicant’s wines, namely, the category of wines offered for sale or
the types of varietal grapes used to produce Applicant’s wines. Businesses and
competitors should be free to use descriptive language when describing their own
goods and/or services to the public in advertising and marketing materials. See In re
Sterotaxis Inc., 429 F.3d 1039, 77 USPQ2d 1087, 1089-90 (Fed. Cir. 2005) (citing In
re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 217 (CCPA 1978) (“The major
reasons for not protecting such [merely descriptive] marks are: (1) to prevent the
owner of a mark from inhibiting competition in the sale of particular goods; and (2)
to maintain freedom of the public to use the language involved, thus avoiding the
Serial No. 87292254
-18-
possibility of harassing infringement suits by the registrant against others who use
the mark when advertising or describing their own products.”)); see also In re
Styleclick.com Inc., 58 USPQ2d 1523, 1527 (TTAB 2001).
Decision: The refusals to register Applicant’s applied-for BIG SIX mark on the
Supplemental Register on the ground that the designation is generic for the identified
goods under Sections 23(c) and 45 of the Trademark Act, and also on the alternative
ground that the applied-for mark is merely descriptive under Section 2(e)(1) of the
Trademark Act, are affirmed. 39

39 In light of our finding that Applicant’s applied-for mark is generic for the identified goods,
Applicant’s alternative request to amend its application to seek registration on the
Supplemental Register is deemed moot.