Ramon E. Jaquez

Trademark Trial and Appeal Board

Jul 11, 2007

No. 76597151 (T.T.A.B. Jul. 11, 2007)

Mailed: July 11, 2007

UNITED STATES PATENT AND TRADEMARK OFFICE
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Trademark Trial and Appeal Board
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In re Ramon E. Jaquez
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Serial No. 76597151
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Myron Amer of Myron Amer, P.C. for Ramon E. Jaquez.

John Dwyer, Trademark Examining Attorney, Law Office 116
(Michael W. Baird, Managing Attorney).
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Before Zervas, Kuhlke and Cataldo,
Administrative Trademark Judges.

Opinion by Cataldo, Administrative Trademark Judge:

Ramon E. Jaquez has appealed from the final refusal of
the trademark examining attorney to register VIVE LA VIDA
LOW CARB as a trademark for “bottled drinking water.”1 On
June 16, 2004, applicant filed his application pursuant to
Section 1(b) of the Trademark Act, based on an asserted
bona fide intention to use the mark in commerce. The
application was subsequently approved by the examining

1 Application Serial No. 76597151. In response to requirements
by the examining attorney, applicant disclaimed “LOW CARB” and
submitted the following translation: the English translation of
VIVE LA VIDA is LIVE THE LIFE.
THIS OPINION IS NOT A
PRECEDENT OF
THE T.T.A.B.
Ser No. 76597151
2
attorney, and was published for opposition. Thereafter, a
Notice of Allowance issued, and applicant filed a Statement
of Use. When the examining attorney examined the Statement
of Use, he determined that the specimen submitted therewith
did not support the mark shown in the drawing. He advised
applicant that he could not cure this problem by amending
the drawing to the mark as it appeared on the drawing,
i.e., VIVE LA VIDA IS LIVE THE LIFE. LOW CARB, as this
would be a material alteration of the mark shown in the
drawing, and required that applicant submit a substitute
specimen showing the mark as it appeared in the drawing.
When applicant failed to do this, the examining attorney
issued a final Office action, and it is from this action
that applicant has appealed.
Applicant and the examining attorney filed main briefs
on the issue under appeal. In addition, applicant filed a
reply brief.
Trademark Rule 2.51(b) requires, in pertinent part,
that in an application under section 1(b) of the Act, the
drawing of the mark must be a substantially exact
representation of the mark as intended to be used on or in
connection with the goods and/or services specified in the
application, and once a statement of use under §2.88 has
been filed, the drawing of the mark must be a substantially
Ser No. 76597151
3
exact representation of the mark as used on or in
connection with the goods and/or services. Thus, the
question before us is whether the mark shown in the
drawing, VIVE LA VIDA LOW CARB in standard character form,
is a substantially exact representation of the mark as
used. To determine this, we must look at applicant's
specimen, reproduced below.2

2 Applicant submitted several copies of the same specimen with
its SOU and responses to the examining attorney’s Office actions
with regard thereto. In addition, applicant submitted with its
brief an exhibit that appears to be a photocopy of an additional
specimen that displays the mark VIVE LA VIDA IS LIVE THE LIFE but
fails to display the words LOW CARB. Inasmuch as this specimen
fails to display the applied-for mark and moreover, because it is
untimely, it will be given no further consideration. See
Trademark Rule 2.142(d) (the record in the application should be
complete prior to the filing of an appeal). We note, however,
that had we considered this exhibit in our determination of the
issue on appeal, the result would be the same.

Ser No. 76597151
4
The words VIVE LA VIDA appear in the same line as the
additional wording and punctuation IS LIVE THE LIFE. above
the words LOW CARB. It is the appearance of IS LIVE THE
LIFE. that has raised the objection by the examining
attorney. It is his position that consumers would not
perceive VIVE LA VIDA LOW CARB as a separate mark, but
would see it only as part of the phrase VIVE LA VIDA IS
LIVE THE LIFE. LOW CARB. He asserts that VIVE LA VIDA IS
LIVE THE LIFE. is a unitary and grammatically correct
sentence that appears in a separate line from LOW CARB. As
a result, he argues that the mark VIVE LA VIDA LOW CARB as
shown in the drawing does not create a separate and
distinct commercial impression from VIVE LA VIDA IS LIVE
THE LIFE. LOW CARB. Thus, the mark as it appears in the
specimen does not match the mark in the drawing and may not
be registered.
Applicant argues that to the Spanish-speaking
community, IS LIVE THE LIFE is merely informational, and
that the consuming public as a whole otherwise would view
such wording merely as an English translation of VIVE LA
VIDA and not part of the mark.
The cases which have dealt with the question of
whether a mark shown in the drawing is a substantially
exact representation of the mark shown in the specimen have
Ser No. 76597151
5
generally been concerned with whether the drawing is a
mutilation of that mark. The question of mutilation, in
turn, depends on whether the mark shown in the specimen can
be considered a composite mark in which the element sought
to be registered creates a commercial impression separate
and distinct from the other elements of the mark. See In
re San Diego National League Baseball Club, Inc., 224 USPQ
1067 (TTAB 1983), and cases cited therein.
Viewing the mark as it appears on the specimen, we
agree with the examining attorney that IS LIVE THE LIFE. is
displayed on the same line and in the same size and
typeface as VIVE LA VIDA, with the exception of IS which is
displayed in slightly smaller type. The words LOW CARB
appear in a line centered directly below VIVE LA VIDA IS
LIVE THE LIFE. The commercial impression, therefore, is
that of a unitary phrase, VIVE LA VIDE IS LIVE THE LIFE.
LOW CARB.3 Consumers would not view VIVE LA VIDA LOW CARB,
as shown in this phrase, as a separate element. See In re
San Diego National League Baseball Club, Inc., supra,
(specimen showing SAN DIEGO PADRES REPORT, with SAN DIEGO,
PADRES, and REPORT in three different sizes and styles of

3 The question of whether, as displayed on the specimens of
record, VIVE LA VIDA IS LIVE THE LIFE. and LOW CARB form a single
mark is not before us.

Ser No. 76597151
6
lettering, with SAN DIEGO and PADRES grouped together on
one line and REPORT on a separate line, does not support
PADRES REPORT shown in drawing); and In re New Yorker
Cheese Company, 130 USPQ 120 (TTAB 1961) (specimens showing
words MARKA, DOBRA and SZYNKA in column superimposed on
outline of Poland unacceptable to show use of applied-for
mark DOBRA).
Applicant has argued that the wording IS LIVE THE LIFE
in its specimen is merely an informational translation of
VIVE LA VIDA. However, the mark as displayed on the
specimens of record clearly displays VIVE LA VIDE IS LIVE
THE LIFE. in a sentence directly centered above LOW CARB.
Thus, even if LIVE THE LIFE is a translation of VIVE LA
VIDA, the impression conveyed by the specimens of record is
that of a single, unitary phrase VIVE LA VIDA IS LIVE THE
LIFE. LOW CARB. The mere fact that one portion of the mark
as it appears on the specimens may translate another
portion does not result in the translation creating a
separate commercial impression, especially when all of the
wording in the mark is displayed as a single expression on
two lines in similar size and font. Thus, we are not
persuaded that either Spanish-speaking consumers or
consumers who cannot read Spanish will view LIVE THE LIFE
as merely informational material that is not part of the
Ser No. 76597151
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mark.
In summary, we find that VIVE LA VIDA LOW CARB, as
used as part of the phrase VIVE LA VIDA IS LIVE THE LIFE.
LOW CARB in the specimen, does not create a separate
commercial impression, and therefore applicant has not
submitted a specimen showing use of the mark VIVE LA VIDA
LOW CARB which is depicted in the drawing.
Decision: The refusal of registration is affirmed.