Wednesday, February 28, 2018

WHITE SANGRIIIA Merely Descriptive of Cocktails, Lacks Acquired Distinctiveness, Says TTAB

The Board affirmed a Section 2(e)(1) refusal to register WHITE SANGRIIIA for "Prepared alcoholic cocktail; Alcoholic beverages except beers" [WHITE and SANGRIA disclaimed], finding the mark to be highly descriptive of the goods and lacking in acquired distinctiveness. Applicant's claim of transferred distinctiveness from its mark GASOLINA SANGRIIIA missed the target. In re Pan American Properties, Corp., Serial No. 86556214 (February 26, 2018) [not precedential] (Opinion by Judge Frances Wolfson).

Mere Descriptiveness: The evidence established that the term "white sangria" is highly descriptive for a prepare alcoholic cocktail. The Board found that "sangriiia" will be readily recognized by relevant consumers as a play on the word "sangria." In general, a mere misspelling of a word is not enough to change a merely descriptive term into a inherently distinctive trademark.

Applicant pointed to its ownership of a registration for the marks GASOLINA SANGRIIIA for the same goods, and argued that the issuance of that registration indicates that the Office accepts SANGRIIIA as a fanciful or suggestive term, but applicant failed to make that registration of record. In any case, the Board noted, that registration would not help applicant because of the clear differences in the registered mark and the applied-for mark.

The Board concluded that each component of applicant's mark retains its merely descriptive connotation in relation to applicant's goods when the terms are combined, and that the combination WHITE SANGRIIIA is highly descriptive of applicant's goods.

Acquired Distinctiveness: Applicant argued that, even though it has not yet used the mark WHITE SANGRIIIA, the term SANGRIIA has become distinctive of its goods and that such distinctiveness will transfer to the mark WHITE SANGRIA when use commences. According to applicant, WHITE SANGRIIA has acquired secondary meaning through use of the mark GASOLINA SANGRIIIA. Applicant has spend $5 million advertising GASOLINA SANGRIA and has sold more than 10 million units of the product for each of the past five years.

The Board, not surprisingly, found clear differences between GASOLINA SANGRIIIA and SANGRIIIA by itself. The presence of the arbitrary term "gasolina" dramatically sets apart the registered mark from the applied-for mark.

Applicant supplied various items showing use of SANGRIIIA by itself but failed to show the extent to which consumers have been exposed to the term. Undated photos were not probative, and the unverified sales figures failed to show when and where the goods were sold or shipped.

Observing that the higher the degree of descriptiveness of a term, the higher the burden to prove acquired distinctiveness, the Board concluded that applicant's evidence was insufficient.

And so the Board affirmed the Section 2(e)(1) mere descriptiveness refusal.

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TTABlog comment:  How about WHITE SANGRILLA?

Text Copyright John L. Welch 2018.


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