TTAB Again Finds Water and Soy-Based Products Related, Sustains 2(d) Opposition
In its June 14, 2007 REVIVAL WATER decision, the TTAB found bottled water and soy shake mix to be related, a ruling that the TTABlog questioned here. Well, the Board has done it again, finding spring water and "soy based beverages not being milk substitutes" to be related for Section 2(d) purposes. The Board therefore affirmed a refusal to register Applicant's two marks shown immediately below, finding the marks to be confusingly similar to the stylized SOLÉ mark shown next below, registered for spring water. In re Sigma Alimentos, S.A. de C.V., Serial Nos. 78572313 and 78572318 (July 3, 2007) [not precedential].
This time, the Board relied on six third-party registrations each showing a mark registered for both water and soy-based beverages. As usual, there was no proof of the extent of use of the marks nor of the public's knowledge thereof, but PTO Examining Attorneys are not expected to provide such proof [although one may wonder why, in this Internet age, they should not be required at a minimum to investigate whether the marks are actually still in use.]
The Board also relied, rather desperately, on a "study reported in several online locations showing that healthy beverages include lots of water and several servings of nonfat, fortified soy beverages." [TTABlog query: healthy diets may also include spinach and cereal. Does that make those items related to water?]
Finally, the Board feebly noted several advertisements and online ordering forms from supermarkets "showing all kinds of non-alcoholic beverages listed together, e.g., alphabetically by type." From this, according to the Board, "it is clear that [the involved goods] do move through the same general channels of trade, and may well be seen as alternatives during the same shopping trip when the average consumer may be looking for healthy, bottled beverages." [TTABlog question: so are tomato juice and V-8 also related to bottled water?]
Finding the goods related and Applicant's marks substantially the same as the cited mark, the Board affirmed the refusal.
TTABlog comment: Third-party registration evidence often raises the hackles of trademark practitioners. It just seems unfair that registrations alone, without proof of the extent of use of the marks and the public's familiarity therewith, should suffice to prove goods or services to be related.
Anyway, I decided to take a closer look at two of the six registrations cited by the Examining Attorney.
The Board noted that Registration No. 2540776 lists both "mineral water" and "soy bean juice" in class 32. However, the full class 32 listing for that registration is: BEER, NONALCOHOLIC MALT BEVERAGE, MINERAL WATER, AERATED WATER, SODA WATER, TEA WATER, FRUIT JUICE, VEGETABLE JUICE, COCONUT JUICE, GRAPEFRUIT JUICE, SYRUPS FOR FRUIT JUICES AND SOFT DRINKS, SOY BEAN JUICE.
Registration No. 2724628 was cited as listing soy bean based beverages in class 29 and drinking water in class 32. Its full class 32 listing is: SOFT DRINKS, PAPAYA FRUIT JUICE DRINK, PEACH JUICE DRINK, SOFT DRINK WITH GRASS JELLY ADDITIVES, WAX GOURD DRINK, FILTERED WATER, TEA WITH CREAM, PASSION FRUIT JUICE DRINK, ALMOND-BASED JUICE, MANGO JUICE DRINK, KIWI JUICE DRINK, FRUIT AND VEGETABLE JUICE DRINK, GUAVA JUICE DRINK, KUMQUAT LEMON JUICE DRINK, DRINKING WATER WITH HERBAL FLAVORING, ORANGE JUICE, BASIL SEED-BASED JUICE, CARROT JUICE DRINK, BANANA JUICE DRINK, PRUNE JUICE DRINK, LYCHEE JUICE DRINK, COCONUT JUICE DRINK, CARAMOLA JUICE DRINK, GRAPE JUICE, GRAPE FRUIT DRINK, LEMON C DRINK, SPORT DRINK, MIXED FRUITS JUICE DRINK, VITAMIN JUICE DRINK, PINEAPPLE JUICE DRINK, LOTUS ROOT JUICE DRINK, VEGETABLE JUICE DRINK, FRUITS VINEGAR DRINK, TOMATO JUICE DRINK, GINGER DRINK, MINERAL WATER, ASPARAGUS DRINK, APPLE JUICE.
I'm beginning to believe that all beverages are related, from spring water to asparagus drink. That's the magic of third-party registration evidence. Its the "Wizard of Oz" approach: don't you dare look behind that curtain!
Text Copyright John L. Welch 2007.