Riverhall Capital LLCDownload PDFTrademark Trial and Appeal BoardJun 2, 2017No. 86398809 (T.T.A.B. Jun. 2, 2017) Copy Citation THIS OPINION IS NOT A PRECEDENT OF THE TTAB Mailed: June 2, 2017 UNITED STATES PATENT AND TRADEMARK OFFICE _____ Trademark Trial and Appeal Board _____ In re Riverhall Capital LLC _____ Serial Nos. 86398809 and 86398831 _____ Jason A. Bernstein of Barnes & Thornburg LLP for Riverhall Capital LLC. Lyndsey Kuykendall, Trademark Examining Attorney, Law Office 124 (Lydia Belzer, Managing Attorney). _____ Before Cataldo, Adlin and Hightower, Administrative Trademark Judges. Opinion by Adlin, Administrative Trademark Judge: Riverhall Capital LLC (“Applicant”) seeks Principal Register registrations for the proposed mark RAYZYN, in standard characters (the “‘809 Application”) and the form shown below Serial Nos. 86398809 and 86398831 2 (the “‘831 Application”) for, inter alia, “wine; fortified wine; port; sparkling wine; champagne” in International Class 33. Applicant also seeks to register the design mark, but not the standard character mark, for, inter alia, “fruit juice” in International Class 32 and “dried fruit; dried fruit mix; pickle juice; bean dips, jellies, jam, fruit preserves, and marmalade; yogurt; fruit based snack foods” in International Class 29.1 The Examining Attorney refused registration of both forms of the mark on the ground that the term RAYZYN is merely descriptive of Applicant’s Class 29, 32 and 33 goods under Section 2(e)(1) of the Trademark Act. After the refusals became final, Applicant appealed and filed requests for reconsideration which were denied. Applicant and the Examining Attorney filed briefs. Appeals Consolidated These appeals involve common questions of law and fact and the records are similar. Accordingly, we consolidate and decide both appeals in this single decision. See In re Binion, 93 USPQ2d 1531, 1533 (TTAB 2009); TBMP § 1214 (2015). Analysis A mark is deemed to be merely descriptive, within the meaning of Section 2(e)(1), if it immediately conveys knowledge of a quality, feature, function, characteristic or purpose of the goods for which it is used. In re Bayer Aktiengesellschaft, 488 F.3d 960, 1 The applications, each filed on September 18, 2014 based on an alleged intent to use the marks in commerce under Section 1(b) of the Act, also identify “chewing gum” in International Class 30, but the Examining Attorney has not refused either application based on the Class 30 goods. The ‘831 Application includes this description of Applicant’s design mark: “The mark consists of the word RAYZYN with the RAY portion of the word appearing in block letters with the R slightly larger than the AY and the ZYN portion of the word appearing in script letters with the Z larger than the YN. Behind the word RAYZYN appears a broken circle.” Serial Nos. 86398809 and 86398831 3 82 USPQ2d 1828, 1831 (Fed. Cir. 2007) (quoting In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009 (Fed. Cir. 1987)); and In re Abcor Development, 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978). A mark need not immediately convey an idea of each and every specific feature of the goods in order to be considered merely descriptive; rather, it is sufficient that the mark describes one significant attribute, function or property of the goods. In re Chamber of Commerce of the United States of America, 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In re H.U.D.D.L.E., 216 USPQ 358 (TTAB 1982); and In re MBAssociates, 180 USPQ 338 (TTAB 1973). The Commercial Impression of RAYZYN While RAYZYN is not a word, and there is no correct pronunciation of trademarks, the proposed mark will obviously be pronounced the same as, or very similarly to, the word “raisin.” Applicant concedes as much. Office Action responses of July 6, 2015 at 5 (“Applicant acknowledges that consumers are likely to pronounce RAYZYN similarly to the dried fruit ‘raisin.’”). The dictionary evidence of record reveals only one definition of “raisin” as a noun, which is “a grape of any of several varieties that has been dried in the sun or by artificial heat.” Office Action of January 6, 2015 at 28.2 Because Applicant’s mark is a “phonetic spelling” of “raisin,” its Class 29 and 32 goods have an obvious relationship to raisins (as discussed more fully below), and there is no evidence that the term has any other meaning in the context of Applicant’s goods or otherwise, consumers will perceive the proposed mark as a reference to 2 http://www.merriam-webster.com/dictionary/raisin. Serial Nos. 86398809 and 86398831 4 raisins. Standard Paint Co. v. Trinidad Asphalt Co., 220 U.S. 446, 455 (1911) (“The word, therefore, is descriptive, not indicative of the origin or the ownership of the goods; and, being of that quality, we cannot admit that it loses such quality and becomes arbitrary by being misspelled. Bad orthography has not yet become so rare or so easily detected as to make a word the arbitrary sign of something else than its conventional meaning ….”); In re Hercules Fasteners, Inc., 203 F.2d 753, 97 USPQ 355, 358 (CCPA 1953) (“We are of the opinion that ‘FASTIE’ is merely a phonetic spelling of ‘fast tie’ and that it connotes that which unites or joins quickly, ‘tie’ being used according to its broad meaning.”); Andrew J. McPartland, Inc. v. Montgomery Ward & Co., 164 F.2d 603, 76 USPQ 97, 99 (CCPA 1947) (“It is further argued by counsel for appellee, and so held by the decisions of the Patent Office tribunals, and properly so, we think, that the term ‘KWIXTART’ is but a phonetic spelling of the term ‘quick start’ and was intended to describe merely that appellant’s battery would start a motor or engine quickly.”); In re Carlson, 91 USPQ2d 1198, 1200 (TTAB 2009) (“In general, a mere misspelling of a word is not sufficient to change a merely descriptive term into an inherently distinctive trademark.”). We thus consider the evidence that “raisin” is merely descriptive of Applicant’s Class 29, 32 and 33 goods. Fruit Products and Fruit Juice in International Classes 29 and 32 Because Applicant’s Class 29 goods include “dried fruit,” and the dictionary definition of record defines “raisin” as a type of dried fruit, raisins are encompassed by Applicant’s identification. Therefore, RAYZYN is descriptive, if not generic, for Applicant’s Class 29 goods. See generally In re Taylor & Francis (Publishers) Inc., 55 Serial Nos. 86398809 and 86398831 5 USPQ2d 1213, 1215 (TTAB 2000) (PSYCHOLOGY PRESS & Design found merely descriptive of nonfiction books in the field of psychology, in part because the applicant’s “identification of goods expressly states that the series of non-fiction books upon which applicant uses its mark are ‘in the field of psychology.’ The word PSYCHOLOGY therefore is merely descriptive of the subject matter of applicant’s books, as identified in the application ….”). The term also immediately describes a potential ingredient in the “dried fruit mix,” “jellies,” “jams,” “fruit preserves” and “fruit based snack foods” identified among Applicant’s Class 29 goods. Similarly, the term immediately describes a potential ingredient in Applicant’s Class 32 goods, “fruit juice.” The evidence leaves no doubt that raisins are an ingredient in some of Applicant’s Class 29 and 32 products, including “fruit based snack foods”: Serial Nos. 86398809 and 86398831 6 Serial Nos. 86398809 and 86398831 7 Serial Nos. 86398809 and 86398831 8 Office Actions of August 19, 2015 and April 3, 2016 and Denial of Request for Reconsideration of November 3, 2016. Where, as here, a proposed mark identifies a product’s ingredient(s), it is merely descriptive. In re TriVita, Inc., 783 F.3d 872, 114 USPQ2d 1574, 1576 (Fed. Cir. 2015) (“The Board found that the relevant consumer, knowing that the goods are supplements containing nopal cactus juice, would understand the mark NOPALEA to convey information that the goods contain ingredients from the Nopalea cactus …Substantial evidence supports the Board’s findings, and its conclusion that Serial Nos. 86398809 and 86398831 9 ‘nopalea’ is merely descriptive of TriVita’s goods.”). Accordingly, the mark in the ‘831 Application is merely descriptive of the Class 29 and 32 goods identified therein.3 Wine in International Class 33 The Examining Attorney’s evidence that “raisin” is merely descriptive of wine is much more limited: 3 Although the ‘831 Application describes the design element of that mark as nothing more than a “broken circle,” Applicant claims in its Appeal Brief that the letters ZYN “plays on ‘zin’ being a commonly known shortening of the zinfandel grape varietal” and that “[t]he broken circle evokes the image of a stain left by the base of a wine glass … The stylized Z is reminiscent of a glass.” 10 TTABVue 8 (in ‘831 Application). We are not persuaded, not only because this smacks of a convenient, after the fact rationalization, but because, as the Examining Attorney points out, consumers would likely not perceive the broken circle, “Z” or ZYN this way. See In re Sadoru Group, Ltd., 105 USPQ2d 1484, 1486 (TTAB 2012) (“A display of descriptive or otherwise unregistrable matter is not registrable on the Principal Register unless the design features of the asserted mark create an impression on the purchasers separate and apart from the impression made by the words themselves, or if it can be shown by evidence that the particular display which the applicant has adopted has acquired distinctiveness.”). Circles are a “common design element,” and therefore not particularly distinctive. See In re Hughes Furniture Indus., Inc., 114 USPQ2d 1134, 1138 (TTAB 2015); National Rural Electric Cooperative Ass’n v. Suzlon Wind Energy Corp., 78 USPQ2d 1881, 1883 (TTAB 2006), aff’d, 214 Fed. Appx. 987 (Fed. Cir. 2007) (“The circle design is hardly particularly distinctive in trademark designs.”); In re Anton/Bauer, Inc., 7 USPQ2d 1380, 1381 (TTAB 1988) (“common geometric shapes such as circles, ovals, triangles, diamonds and stars, when used as backgrounds for the display of word or letter marks, are not regarded as trademarks for the goods to which they are applied absent evidence of distinctiveness of the design alone”). Serial Nos. 86398809 and 86398831 10 Serial Nos. 86398809 and 86398831 11 Office Action of April 3, 2016 and Denial of Request for Reconsideration of November 3, 2016. While we might very well reach a different conclusion on a different record, such as could be presented in an inter partes proceeding, this “thin” evidence is not enough to persuade us that RAYZYN is merely descriptive of wine. The Wikipedia entry indicates that “raisin wine” is also known as “straw wine,” and there is no evidence that consumers encountering “straw wine” would know that it is made from raisins. Moreover, according to the entry, straw wine production methods are “labour intensive” and “low yield,” such that the wine is expensive, suggesting that there may not be widespread consumer exposure to this type of apparently “niche” wine. In fact, the section of the entry concerning the United States indicates that some California wineries, one of which is described as a “cult winery,” are merely “experimenting” with straw wine, while “[i]n Texas it was illegal to make wine from dried grapes until 1999.” Similarly, the article from the “happyhomemaker88.com” website is about “homemade” raisin wine, which is apparently used by a single cook at home, as opposed to mass market or large yield wine. Finally, despite the name, there is no Serial Nos. 86398809 and 86398831 12 indication that the “Raisins Gaulois” wine depicted in the printout from “astorwines.com” is in fact made from raisins as opposed to grapes. While the “staff pick notes” indicate that the wine “is full of raisins, dried cranberry and red currant fruit and lively acidity,” this appears at least as likely to be a wine “tasting note,” describing the wine’s flavors,4 as a statement of its actual ingredients. In short, this limited evidence is not sufficient to establish that a meaningful number of United States consumers are aware that some wine is made from raisins, and therefore we cannot find that consumers would understand RAYZYN to describe raisin wine or its ingredients.5 In fact, because it is clear from the record that most wine is made from grapes, RAYZYN is somewhat incongruous, and would require those familiar with “normal” grape wine to take a “mental leap” to connect the term RAYZYN with the product wine. In contrast to the evidence regarding Applicant’s Class 29 and 32 goods, which establishes that raisins are the goods themselves or common ingredients of the goods, and thus that consumers would perceive RAYZYN as descriptive, the evidence regarding Applicant’s Class 33 goods is too meager to establish that Applicant’s mark is descriptive. Accordingly, we cannot find on this record that RAYZYN is merely descriptive of Applicant’s Class 33 goods. 4 A single tasting note is not sufficient for us to find that “raisin” or RAYZYN immediately describes a wine’s flavor. 5 In fact, the Examining Attorney’s evidence appears to illustrate little more than “the thoroughness with which NEXIS [and the Internet] can regurgitate a [term] casually mentioned in the news” or on the Internet. In re Merrill Lynch. Pierce, Fenner, and Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 n.1 (quoting In re Societe Generale Des Eaux Minerales De Vittel S.A. 824 F.2d 957, 3 USPQ2d 1450, 1451 (Fed. Cir. 1987)). Serial Nos. 86398809 and 86398831 13 Conclusion The evidence leaves no doubt that RAYZYN merely describes Applicant’s Class 29 and 32 goods, or the ingredients thereof, but is insufficient for us to find that it is merely descriptive of Applicant’s Class 33 goods. Decision: The descriptiveness refusals to register the marks in the ‘809 and ‘831 Applications for Applicant’s Class 33 goods under Section 2(e)(1) of the Trademark Act are both reversed. The descriptiveness refusal to register the design mark in the ‘831 Application for Applicant’s Class 29 and 32 goods is affirmed. Copy with citationCopy as parenthetical citation