Red BullGmbH

Trademark Trial and Appeal Board

Feb 15, 2006

No. 75405826 (T.T.A.B. Feb. 15, 2006)

Mailed:
February 15, 2006
Bucher

UNITED STATES PATENT AND TRADEMARK OFFICE
________

Trademark Trial and Appeal Board
________

In re Red Bull GmbH
________

Serial No. 75405826
_______

Martin R. Greenstein of TechMark for Red Bull GmbH.

Ira Goodsaid, Trademark Examining Attorney, Law Office 101
(Ronald R. Sussman, Managing Attorney).
_______

Before Bucher, Holtzman and Rogers, Administrative
Trademark Judges.
Opinion by Bucher, Administrative Trademark Judge:
Red Bull GmbH seeks registration on the Principal
Register of the mark WINGS (standard character drawing) for
goods recited in the application, as amended, as “mineral
and aerated waters and other non-alcoholic beverages;
energy and sports drinks” in International Class 32.1

1 Application Serial No. 75405826 was filed on December 15,
1997 based upon applicant’s allegation of a bona fide intention
to use the mark in commerce. A notice of allowance issued to
THIS DISPOSITION IS NOT
CITABLE AS PRECEDENT
OF THE TTAB
Serial No. 75405826
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This case is now before the Board on appeal from the
final refusal of the Trademark Examining Attorney to
register this designation based upon the ground that none
of the specimens submitted by applicant demonstrates use of
the term WINGS as a mark for the applied-for goods.
Applicant and the Trademark Examining Attorney have
fully briefed this appeal, but applicant did not request an
oral hearing. We affirm the refusal to register.
Applicant’s first statement of use relied upon two
point-of-sale display items.2 One is a sticker (featuring
a cartoon character bull and the phrase NOW AVAILABLE: SUGAR
FREE WINGS) designed for placement on a store window,
refrigerated cooler door or other point of sale display
(below left). The second is a stand-alone point of sale
display card bearing the phrase RED BULL GIVES YOU WINGS,
intended to hold a single can of Red Bull energy drink
(below center and right, reproduced without and with an
actual can of Red Bull inserted, respectively):

applicant on May 1, 2001. Applicant filed a statement of use on
October 27, 2003, followed by a second statement of use on May
4, 2004. Applicant alleges first use anywhere as of January 31,
1987 and use in commerce with the United States at least as
early as May 31, 1996.
2 Filed on October 27, 2003.
Serial No. 75405826
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Oct. 27, 2003, sticker Oct. 27, 2003, display card without can

Oct. 27, 2003, display card with can

After the Trademark Examining Attorney
refused to accept the original statement of
use on the ground that the specimens showed
matter, i.e., phrases, that differed from
the single word mark WINGS, applicant
submitted a different point of sale sticker
(top portion of image) along with a
photograph showing how this replacement
sticker is displayed on a cooler door
(bottom portion of image).3
May 4, 2004, sticker (top),
photo (bottom)

3 Filed on May 4, 2004. This reproduction of the replacement
specimen contains a callout box added by the author of this
decision to show more clearly the wording printed below the
image of the four-pack of Red Bull beverages on the sticker.
INTRODUCING THE NEW 4-PACK.
RED BULL GIVES YOU WIIINGS.
Serial No. 75405826
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In support of its position that we should reverse the
refusal of the Trademark Examining Attorney to register
this matter absent a substitute specimen in which the word
WINGS alone projects a separate and distinctive commercial
impression, applicant makes the following arguments:
• In the instant case, applicant is not attempting to
amend the drawing, as was true in many of the cases
cited by the Trademark Examining Attorney in his brief.
• In the English language, WINGS and WIIINGS have the same
meaning and commercial impression: the “III” (or triple
letters “i” within WIIINGS) will be seen as a
pronunciation key not unlike a diacritical mark.
• Applicant’s having changed the word WINGS into WIIINGS
will be interpreted as a “cool” or “catchy” way of
spelling and pronouncing the word “wings.” There is no
other English language word for which the meaning could
be mistaken, and unlike the rules in some other
languages, vowel length does not change the meaning of a
word in the English language.
• Its slogans are indistinguishable from “NOW AVAILABLE:
SUGAR FREE COKE,” “GENERAL MILLS GIVES YOU CHEERIOS” or
“KELLOG[G’]S [sic] GIVES YOU SPECIAL K,” etc.
Serial No. 75405826
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• When each occurrence of the word WINGS or WIIINGS is
viewed in the context of the commercial realities facing
the consumer, it is clear in each of these uses that the
term WINGS is being used as a trademark for the canned
beverages being sold.
• Nothing in U.S. trademark law requires that a specimen
explain what a particular trademark means. Indeed,
applicant argues that the “best” trademarks are often
those having no meaning, no dictionary definition and no
direct reference to the product.
• The very lack of a definition of the term leaves only
one logical remaining commercial impression – that the
word WINGS must be a trademark for this beverage.
By contrast, the Trademark Examining Attorney argues
that:
• The word WIIINGS (with a triple letter “i”) is a
different term entirely, and hence must be considered to
be materially different from the word WINGS.
• In each of the foregoing displays, the word WINGS fails
to make a separate and distinct commercial impression
apart from the other elements – in this case, apart from
the various multiple-word slogans in which the word
appears.
Serial No. 75405826
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• Applicant’s analogy of its phrase, SUGAR FREE WINGS, to a
suggested SUGAR FREE COKE, is inapposite. First, the
Trademark Examining Attorney argues that it is not clear
to him that use of the term SUGAR FREE COKE would, in
fact, support registration of the word COKE alone, as a
trademark. Second, the Trademark Examining Attorney
contends that in applicant’s suggested analogy, COKE is
a famous, registered trademark used on the containers of
beverage with which it is associated. By contrast, the
word WINGS is not registered, is not used on the
beverage container, and based on the evidence in this
record, there is ambiguity about what this term even
means in this context.
• The expression, RED BULL GIVES YOU WIIINGS, in particular,
cannot support use of WINGS alone as a trademark as it
consists of a unitary slogan ending with a materially-
different term.
It is well settled that an applicant may apply to
register any element of a composite mark if that element,
as shown in the specimens, presents a separate and distinct
commercial impression which indicates the source of
applicant’s goods and distinguishes applicant’s goods from
Serial No. 75405826
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those of others. The relevant rule requires that “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….”4 See also In re Chemical
Dynamics Inc., 839 F.2d 1569, 5 USPQ 2d 1828 (Fed. Cir.
1988); In re Servel, Inc., 181 F.2d 192, 85 USPQ 257 (CCPA
1950); In re Miller Sports Inc., 51 USPQ2d 1059 (TTAB
1999); In re Boyd Coffee Co., 25 USPQ2d 2052 (TTAB 1993);
In re Raychem Corp., 12 USPQ2d 1399 (TTAB 1989); In re
Sperouleas, 227 USPQ 166 (TTAB 1985); In re San Diego
National League Baseball Club, Inc., 224 USPQ 1067 (TTAB
1983); In re Volante International Holdings, 196 USPQ 188
(TTAB 1977); In re Library Restaurant, Inc., 194 USPQ 446
(TTAB 1977); In re Semans, 193 USPQ 727 (TTAB 1976); In re
Lear-Seigler, Inc., 190 USPQ 317 (TTAB 1976); In re Mango
Records, 189 USPQ 126 (TTAB 1975); and In re Tekelec-
Airtronic, 188 USPQ 694 (TTAB 1975); see also TRADEMARK MANUAL
OF EXAMINING PROCEDURE, §§ 807.12(a) and (d) (4th ed. April

4 “(b) 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 an amendment to allege use under
§2.76 or a statement of use under §2.88 has been filed, the
drawing of the mark must be a substantially exact
representation of the mark as used on or in connection with
the goods and/or services.”
37 C.F.R. Section 2.51(b).
Serial No. 75405826
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2005), and cases cited therein. If the instant application
had included specimens showing use of the term sought to be
registered as a trademark in connection with the goods set
forth in this application, substitute specimens would not
have been required.
In response to the Trademark Examining Attorney’s
initial refusal to register based on the specimens
submitted with the statements of use, applicant has not
attempted to submit pre-existing specimens showing the word
WINGS used alone for the involved goods.5 Hence, some of
applicant’s arguments about the meaning of the word “wings”
in this context represent a misunderstanding of the issue
before us, i.e., whether the drawing is a substantially
exact representation of the mark as used on the specimens.
The question is not whether the mark shown in the drawing,
if it were standing alone, is capable of denoting
commercial origin. As noted above, if the mark shown in
the drawing were shown standing alone on the specimens
submitted with the statements of use, it is unlikely that

5 In order to have the statement of use approved, and in
turn, in order to register this alleged mark as a source
indicator for its goods, applicant should have submitted a
properly verified substitute specimen in which the word WINGS
alone projects a separate and distinctive commercial impression.
The final refusal of the Trademark Examining Attorney dealt with
applicant’s failure to comply with this requirement.
Serial No. 75405826
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the Trademark Examining Attorney would have required the
submission of substitute specimens. Moreover, independent
capability to designate commercial origin is not the issue.
The issue is whether the specimens show the mark in the
drawing used in a way that it actually functions to
identify applicant’s products. Contrary to applicant’s
arguments, the specimens in this case do not present the
word WINGS in such a way that it creates a separate,
distinct commercial impression apart from that created by
the various slogans.
We do agree with applicant that given the issues
involved in this appeal, the question of material
alteration is not before us. Specifically, in response to
the Trademark Examining Attorney’s refusals to register
based upon the specimens submitted with the statements of
use, applicant has not attempted to amend the drawing to
depict any of the several slogans. Hence, we do not need
to resolve the question of material alteration –- that is,
whether amendment of the drawing to show one of the slogans
seen in these point-of-sale displays would constitute a
significant change from the applied for mark.
On the other hand, we agree with the Trademark
Examining Attorney that based upon applicant’s various
Serial No. 75405826
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specimens of record, the alleged trademark WINGS shown on
the drawing page is not a substantially exact
representation of any source-indicating matter located on
the original specimens or on the substitute specimens.
Applicant’s arguments in support of registration do not
persuade us to reach a different result.
As to the question of whether use of a misspelled
version of the word WINGS (e.g., WIIINGS, having a
triple letter “i”) will support registration of WINGS
alone, we agree with the Trademark Examining Attorney
that it will not.
First, we find it difficult to reconcile
applicant’s contention that the misspelling of WIIINGS
is a “cool” or “catchy” form of the normal spelling of
the word “wings” with its argument that both forms of
the word (WINGS and WIIINGS) convey the same
commercial impression. The misspelled word cannot be
so different as to be cool and catchy and, at the same
time, not appreciably different from the correct
spelling of the word.
Second, we find that allowing applicant to secure a
registration based upon this misspelling is not unlike
cases in which this Board has rejected registration of
Serial No. 75405826
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“phantom marks.” See In re International Flavors &
Fragrances Inc., 183 F.3d 1361, 51 USPQ2d 1513 (Fed. Cir.
1999); Cineplex Odeon Corp. v. Fred Wehrenberg Circuit of
Theatres Inc., 56 USPQ2d 1538 (TTAB 2000); Cf. In re Upper
Deck Co., 59 USPQ2d 1688 (TTAB 2001). In such cases, an
applicant seeks to register a single term while claiming
the right to use the term in a variety of forms. In the
instant case, one might anticipate a logical extension of
applicant’s general argument for a legal equivalence
herein, that WINGS actually provides protection for a
variety of other forms, such as WINGGGS, WIIIIIIINGS, WYNGS,
WYYNGS, etc.
Even if WINGS and WIIINGS were considered equivalent,
the term always appears in slogans such as ! “NOW
AVAILABLE: SUGAR FREE WINGS,” " “RED BULL GIVES YOU WIIINGS,”
and # “4 CANS. 8 WIIINGS. INTRODUCING THE NEW 4-PACK. RED BULL
GIVES YOU WIIINGS.” None of the above slogans has the same
visual or connotative impression as the word WINGS alone.
There is absolutely no evidence whatsoever in this record
that prospective purchasers would read these sentences or
slogans and arrive at the conclusion that applicant’s
applied-for term is a trademark for beverages.
Serial No. 75405826
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The letters comprising the term WINGS (or
WIIINGS) are always the same size, color and degree of
boldness as the lettering of the surrounding words.
Yet, in an earlier Board case, where the applied-for
term (CONFIDENCE) was actually presented in larger
size lettering and in a different color than the rest
of the phrase (CONFIDENCE TO ENJOY A NORMAL AND ACTIVE
LIFE.), the Board nonetheless found that the
plaintiff’s use of the word CONFIDENCE on its
brochures would be perceived as an “integral and
natural” part of the larger
phrase – not as a separate mark.
Ipco Corp. v. Blessings Corp.,
5 USPQ2d 1974 (TTAB 1988).
According to applicant, the word “wings” will
jump out of these slogans and hence, be perceived as a
trademark by prospective customers. Applicant reasons
that faced with these specimens, customers logically
will believe either that “Red Bull is now distributing
physical wings of some sort (say, bird, insect or
airplane), or the consumer can conclude that WINGS
must be a trademark for a drink from Red Bull….
Nobody would realistically think that Red Bull is
Serial No. 75405826
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selling actual ‘wings’.” Applicant’s appeal brief,
p. 3.
However, while applicant limits the possible
meanings customers may read into its “Wings”
promotional slogans, and concludes that “Wings” will
jump out of these multi-word phrases as a trademark,
our review of applicant’s goods and point-of-sale
displays suggest there is at least one other plausible
meaning that might well occur to prospective
purchasers of this beverage. For example, applicant’s
use of the expression “Red Bull gives you wings” might
well be seen as referring to the impact of consuming
the energy drink, rather than as a trademark for the
drink itself.6

6 One of the specimens of record, supra, is a stand-alone
display having a pair of bird-like wings attached to either side
of a Red Bull beverage can. Moreover, the point-of-sale cooler
display sign/decal submitted as a substitute specimen contains
wording directly below the photo, suggesting precisely how the
merchant should place this cooler display decal “on the cooler
door to communicate the functionality of Red Bull ….” (emphasis
supplied).
Interpreting this phrase as a reference to the impact of
consuming the energy drink is entirely consistent with
applicant’s marketing of this “energy drink” as seen in these
specimens of record. In this context, we take judicial notice
of the dictionary definition of the intransitive verb, “wings,”
as meaning “to fly” [THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE, (1975), p. 1468]. Hence, the expression “Red Bull
gives you wings” suggests the touted “functionality of RED BULL,”
namely, an improved ability to concentrate, increased alertness,
better reaction times, greater stamina, etc.
Serial No. 75405826
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Applicant also argues that “Wings” is a more arbitrary
term than other wording it uses in its slogans or phrases,
and thus is more likely to be perceived as source
indicating. In the case of In re Jane P. Semans, 193 USPQ
727 (TTAB 1976), the Board rejected that applicant’s
contention that the word “Krazy” was registrable apart from
the composite phrase “Krazy Mixed-Up,” because of the
descriptive nature of the term “Mixed-Up” for food
seasonings. The Board affirmed the refusal to register the
word KRAZY alone, pointing out that “...‘KRAZY MIXED-UP’ is
a unitary phrase, of which ‘KRAZY’ is an integral part …”
and further noting that “there is nothing in the record to
suggest that customers and prospective purchasers of
applicant’s goods separate the phrase into component parts
and utilize ‘KRAZY’ alone to call for and refer to the
goods.”
Similarly, in the case now before the Board, there is
nothing in the instant record to suggest that those seeking
applicant’s goods would separate the word “Wings” from the
slogans involved herein, and use that single word to call
for applicant’s goods. Although undoubtedly applicant
believes this word to be its trademark for energy drinks,
we find that the word “Wings” is so merged with the rest of
Serial No. 75405826
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the words in the various phrases on the specimens of record
that this word alone cannot be regarded as a separable
element. The word, as used on the specimens, does not
create a separate and distinct commercial impression, and
hence does not function in and of itself as a mark for the
identified goods. As such, the drawing represents a
mutilation of the various slogans that the specimens show
being used on applicant’s point of sale displays.
Decision: Because applicant did not comply with the
requirement of the Trademark Examining Attorney to submit a
specimen showing use of the mark in connection with the
identified goods, we affirm the refusal to allow the mark
for registration.