Thursday, February 28, 2008

TTAB Affirms Refusal of "FRESHHERBS.COM" for Herbs, Finding Mark Merely Descriptive and Specimen Faulty

The Board not surprisingly affirmed two refusals to register the mark FRESHHERBS.COM for "unprocessed culinary herbs," finding the mark to be merely descriptive of the goods and Applicant's specimen of use inadequate. In re Shenandoah Growers, Inc., Serial No. 76620753 (February 14, 2008) [not precedential].

Examining Attorney Alicia P. Collins maintained that the mark "is not prominently placed on the front of the packaging as an indicator of source for the goods (as i sthe Applicant's mark ... KATERI'S). Instead, consumers will view the proposed mark 'FRESHHERBS.COM' as merely the web site address that they may 'visit' in order to get information about using the Applicant's goods."

The Board agreed with the PTO: "The phrase 'For more great Freshherb ideas visit' appears at the bottom of the front of the packaging insert and at the bottom of the back of the insert, just above the UPC barcode." The impression is that "" is a web address and not a trademark.

As to the section 2(e)(1) refusal, the PTO relied on dictionary definitions of "fresh" and "herb," and on Internet excerpts showing use of "fresh" in connection with herbs. Applicant's specimen of use refers to "Fresh Basil." This evidence establishes "that 'fresh' as used in conjunction with 'herbs' identifies the condition of applicant's unprocessed culinary herbs."

The TLD ".com" does not serve a trademark function, but merely indicates that "potential customers can transact business with [applicant] via the Internet."

"This is not a case where exceptional circumstances exist so that the addition of the TLD to FRESHHERBS renders the mark suggestive. *** [T]he combination of 'fresh,' 'herbs, and '.com' does not invoke a unique commercial impression. It also is not incongruous or bizarre as applied to the goods."

The Board therefore affirmed the refusals.

Text Copyright John L. Welch 2008.


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