Thursday, June 07, 2007

Precedential No. 39: Proof of Acquired Distinctiveness Falls Short for "ALPINE SPRING WATER"

The TTAB upheld the PTO's requirement that Applicant Crystal Geyser disclaim the phrase ALPINE SPRING WATER in its applied-for mark CRYSTAL GEYSER ALPINE SPRING WATER for bottled spring water. Applicant sought registration under Section 2(f), but in light of the highly descriptive nature of the phrase, the Board found Applicant's evidence insufficient to establish acquired distinctiveness. In re Crystal Geyser Water Co., 85 USPQ2d 1374 (TTAB 2007) [precedential].

The Board observed that, as a mark's descriptiveness increases, so does the amount of evidence needed to satisfy Section 2(f). "A successful advertising campaign is not in itself necessarily enough to prove secondary meaning."

In maintaining that the phrase is highly descriptive, Examining Attorney Elizabeth A. Hughitt relied on a dictionary definition of "alpine" as meaning "of or relating to high mountains," and pointed to Applicant's website, which referred to the source of its water as "an alpine spring." Various website printouts and LEXIS/NEXIS excerpts showed that third-parties use "alpine spring" and "alpine spring water" to describe a type of bottled water. Moreover, she asserted, Applicant's advertising and promotional materials "consistently reinforce the highly descriptive significance of the phrase at issue." And she showed that others in the industry display their house marks "in close proximity to the name of the goods."

To prove acquired distinctiveness, Applicant Geyser stressed its sale of more than 7 billion bottles of water bearing the phrase “alpine spring water" since 1990, display of the phrase on delivery trucks and in extensive advertising, and promotion of its product as the "official water" of various entertainment and tourist venues.

The Board concluded that, in view of the highly descriptive nature of the phrase ALPINE SPRING WATER, Geyser had failed to prove acquired distinctiveness.

"Thus, despite the broad advertising campaign for CRYSTAL GEYSER ALPINE SPRING WATER and the impressive sales figures, we do not find that ALPINE SPRING WATER has come to signify the commercial source of the product, but rather continues merely to inform the consumers about the nature of the product, particularly in an industry where consumers are accustomed to seeing the brand name and the designation of the type of bottled water in close proximity to each other ….”

The Board distinguished the level of proof in this case from that in In re America Online, Inc., 77 USPQ2d 1618 (TTAB 2006) [TTABlogged here]. There, the Board found that the mark INSTANT MESSENGER had acquired distinctiveness in view of AOL's showing that 80 million users sent one billion messages each day using its service, its evidence that many corporations were licensed to use the mark, and its submission of affidavits from customers attesting to the mark's source-identifying significance.

Text Copyright John L. Welch 2007.


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