TTAB TEST: Is "BLENDS" Merely Descriptive of Wine Marketing Services?
The USPTO refused registration of the marks BLENDS and BLENDS, INC., in standard character form, for "marketing, advertising and promoting the sale of wine." The word "blends" is descriptive of wine, but does it describe applicant's services? Applicant contended that "blends" has many different meanings. How do you think this came out? In re Ren Acquisition, Inc., Serial Nos. 85787527 and 85787531 (October 3, 2014) [not precedential].
The evidence showed that the term "blend" is used to identify wine made from two or more varieties of grapes. Applicant maintained that "blends" is not descriptive of marketing, selling and promoting wines. It asserted that the PTO's evidence dealt with wine as a product, or with the act of selling wine, but not with marketing services: "Marketing, advertising, and promoting the 'sale' of wine is considerably different than the act of selling wine or producing wine."
The Board found that "the word 'Blends' describes the products that Applicant is marketing, advertising and/or promoting and, as such, it should remain available to any company rendering these services."
Applicant argued that when used in connection with marketing services, the word "blends" could refer to many things, not just wine. However, as the Board has repeatedly pointed out, "the determination of whether a mark is merely descriptive is not considered in the abstract but in connection with the services at issue." Applicant itself stated that it could market, advertise, and promote blended wines. The fact that "blends" may have different meanings in other contexts is simply irrelevant. [Applicant's out-of-context argument is, in my view, one of the Top Ten Losing TTAB Arguments].
And so the Board affirmed both refusals.
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TTABlog comment: Was this a WYHA?
Text Copyright John L. Welch 2014.