Tuesday, September 21, 2010

TTAB Affirms 2(e)(1) Mere Descriptiveness Refusal of "ROUGE TOMATE" for Fruit and Vegetable Juices

How's your French holding up? Today we look at the Board's affirmance of a Section 2(e)(1) mere descriptiveness refusal of ROUGE TOMATE for various non-alcoholic beverages, including fruit and vegetable juices. The Examining Attorney maintained that the mark describes a feature, characteristics or ingredient of the goods because several vegetable drinks and juices are derived from red or ripened tomatoes. The Board affirmed, but on the ground that consumers who understand French will immediately understand the mark ROUGE TOMATE (or “tomato red”) as describing the color of the identified juices. In re LE CHÂTEAU DE MA MERE, société anonyme, Serial No. 79975049 (September 3, 2010) [not precedential].

Applicant asserted that the mark should properly be translated as "tomato red," and that "the shade [of color] conveyed by the mark is one connected with passion, pleasure and joy – all of which are emotions applicant would like to conjure through use of the mark." The Examining Attorney contended that another translation is "red tomato," which is an ingredient of tomato juice and other beverages.

The Board accepted Applicant's translation of the mark but nonetheless affirmed the refusal.

[B]ased on the undisputed evidence showing that tomatoes are used as ingredients in fruit and vegetable juice drinks, it stands to reason that the color of such drinks will likely and aptly be described as “tomato red.” That is, consumers who understand French and encounter applicant’s mark on vegetable and fruit juices will immediately understand the mark ROUGE TOMATE (or “tomato red”) as describing the color of the identified juices.

The Board recognized that its rationale for affirming the refusal differed from the reasoning of the Examining Attorney, but "it has long been held that the Board is not obliged or confined to adopt the reasoning of the examining attorney in affirming a statutory refusal to registration."

The Board observed that, given Applicant's translation of the mark as "tomato red," it need not reach the question of whether consumers would also translate the mark as "red tomato."

Text Copyright John L. Welch 2010.


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