Tuesday, May 21, 2013

Test Your TTAB Judge-Ability: Must NATURALLY be Disclaimed in NATURALLY POWERED for All-Natural Beverages?

The PTO refused registration of the mark NATURALLY POWERED for "all-natural coconut-based beverages," because Applicant Zico refused to disclaim the word NATURALLY. The Examining Attorney insisted that NATURALLY is merely descriptive of the goods, and must be disclaimed under Section 6(a) of the Act. Zico argued that NATURALLY POWERED is a unitary expression and a double entendre. How do you think this came out? In re Zico Beverage LLC, Serial No. 85284093 (May 9, 2013) [not precedential].

The Examining Attorney relied on dictionary definitions of "naturally" in maintaining that the word conveys to consumers that Applicant's beverages do not contain synthetics, chemicals, preservatives, artificial ingredients, and other non-natural substances.

The Board, however, agreed with Zico that NATURALLY POWERED is a unitary expression. "A unitary mark is a mark with multiple elements that creates a single and distinct commercial impression separate and apart from the meaning of its constituent terms." The Board concluded that "the term NATURALLY in applicant's NATURALLY POWERED mark clearly modifies the term POWERED to create a unitary phrase that only suggests a feature of applicant's goods."

Moreover, the Board agreed that NATURALLY POWERED is a double entendre: on the one hand, it connotes goods that are powered by forces of nature, and on the other, goods that are powered in a natural manner, without special intervention. Thus consumers will view NATURALLY POWERED as having several connotations.

And so the Board reversed the refusal.

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Text Copyright John L. Welch 2013.


At 9:02 AM, Anonymous Rebecca Tushnet said...

It sounds like the TTAB confused a double entendre with saying one thing two ways.


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