Tuesday, December 19, 2006

TTAB Remands "COCAINE" Energy Drink Application to Examining Attorney

On December 6, 2006, the TTAB granted the request of Examining Attorney Michael Engel for remand of James T. Kirby's application for registration of the mark COCAINE for "carbonated and non-carbonated soft drinks and energy drinks." See Trademark Rule 2.130. The Board simultaneously suspended the pending opposition brought by Americans for Drug Free Youth, Inc. and Progressive Intellectual Property Law Association. (Opposition No. 91173295). (Order here).

The Examining Attorney stated that further review of the file necessitated the remand in order that the PTO could request further information and could assert refusals under Sections 2(a) and 2(e)(1). As to the former refusal, the PTO now finds the mark immoral or scandalous. As to the latter, depending on whether the subject drinks contains cocaine, the mark is either merely descriptive or deceptively misdescriptive. In that regard, the PTO requires additional information regarding the ingredients of the drinks.

The PTO's action was apparently precipitated in part by the opposition brought by five Cleveland State University law students, which raised the "immoral and scandalous" ground as well as the deceptive misdescriptiveness issue.

TTABlog comment: Note that the Section 2(e)(1) refusal(s) may be overcome by a showing of acquired distinctiveness under Section 2(f). Not so, however, as to the Section 2(a) refusal.

Text Copyright John L. Welch 2006.


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