TTAB Reverses Mere Descriptiveness Refusal of "ERILLO" For Electronic Cigars
The Board reversed this Section 2(e)(1) refusal of the mark ERILLO, finding it not merely descriptive of "tobacco products and accessories, namely electronic cigarettes and electronic cigars." The examining attorney contended that "rillo is merely a type of cigar and an erillo is another word for electronic cigar," but the USPTO's evidence was mostly smoke and not enough substance. In re Blunt Wrap U.S.A., Inc., Serial No. 85938790 (May 12, 2015) [not precedential].
The examining attorney relied on a dictionary definition of "e" (electronic) and two website pages referring to a "rillo" as a small cigar in which the tobacco has been replaced by cannabis. Other websites referred to cigars as "rillos," to small cigars as cigarillos, and to electronic cigars as "e-cigars."
The Board acknowledged that the letter "e" often means "electronic," but the questions was whether when the letter is combined with "rillo," the compound term is merely descriptive of the identified goods. The Board could not make such a finding based on the evidence of record.
In addition to being few in number, the above-mentioned “definitions” and uses of the term “rillo” are from websites that provide no source attribution, and therefore have little probative value. Moreover, there is no information in the record as to whether the general population has been exposed to any of the websites.... *** The term “rillo” appears to be a slang term for a cigarillo with altered contents, and as noted above, a cigarillo is defined as “a small, thin cigar,” but that is not enough evidence on which to base a finding that the mark ERILLO is merely descriptive of electronic cigars and electronic cigarettes.
If a "rillo" requires replacement of the tobacco with another substance, use of the term with applicant's electronic cigarettes and cigarettes is incongruous, because they do not contain tobacco that could be replaced.
The Board therefore reversed the refusal to register, but noted that "on a different record" it might reach a different result.
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TTABlog note: Is there such a think as e-snuff? An e-chaw? An e-bong?
Text Copyright John L. Welch 2015.