Friday, June 20, 2014

WYHA? TTAB Affirms Mere Descriptiveness Refusal of "TEA QUILA" for Alcoholic Beverages

We haven't had a WYHA? in a while. But I don't want to lose that "trademark" through non-use, so here goes. The Board affirmed a Section 2(e)(1) refusal to register the mark TEA QUILA, finding the mark merely descriptive of "alcoholic beverages except beer." The Board pooh-poohed Applicant's double entendre argument that TEA QUILA may be seen "as a type of Quila, where Tea modifies Quila (which may be interpreted as a coined or nonsense term, and is also type of bamboo, a city, and in Hindi/Urdu a fort or fortress)." In re IV Science, LLC d/b/a Green & Co., Serial No. 85609906 (June 18, 2014) [not precedential].

The evidence submitted by Examining Attorney Cheryl Clayton established that TEA QUILA describes an alcoholic beverage made with tea and tequila. Applicant argued that the PTO must show that TEA QUILA "does nothing but describe the goods or services with which it is used." That is not, however, a correct statement of the law. A mark must be considered in the context of the goods or services with which it is used, not in the abstract.

As to Applicant's double entendre argument, the Board pointed out that Applicant submitted no evidence supporting its definition of "quila." Moreover, Applicant submitted no evidence that anyone
would interpret TEA QUILA as "tea" + "bamboo, or city, or fort, or fortress." "Further, unless Applicant can establish that this interpretation of TEA QUILA has significance as applied to the goods, it is not a double entendre. See TMEP § 1213.05(c) (April 2014)."

Finally, Applicant argued that the term TEA QUILA sounds like "tequila," but that was no help because "tequila" is itself merely descriptive of alcoholic beverages.

And so the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog note:  Well, would you have appealed?

Text Copyright John L. Welch 2014.


At 8:08 AM, Anonymous Gene Bolmarcich said...

I hate commenting without reading the case but a quick Google search on teaquilla reveals only one site with a recipe for "teaquilla". I'll be curious to see where the evidence came from. If anything the word is generic, not descriptive...or is the Board implying that generic is just a subset of descriptive (if not legally, then certainly "literally")?

At 10:26 AM, Anonymous paul rapp said...

Tequila also is a restricted geographical term that can only be used for spirits made in one region of Mexico. A micro distiller client in MA made some of the best-tasting tequila I've ever had, but can't market it as tequila. I suggested he call it "I Can't Believe It's Not Tequila."


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