Friday, June 01, 2018

TTAB Test: Are These Specimens of Use Acceptable for Bottle Caps?

The USPTO refused registration of the mark OXZGEN for "[n]on-metal dosing caps for bottles; non-metal dispensing caps for containers," on the ground that applicant's specimens of use (below) failed to show the mark in use with the identified goods. Applicant appealed, arguing that the specimens show "normal packaging" for its goods, that such is the normal "mode of use," and that the mark on the container "functions as a label or tag since it would be impractical to put the mark on the actual dispensing cap." How do you think this came out? In re Wholesale & Retail Distribution, Inc. Serial No. 86586432 (May 30, 2018) [not precedential] (Opinion by Judge Angela Lykos).

The Board recognized that when it is impracticable to place the mark on the goods, the packaging for the goods, or associated displays, the USPTO may accept another document related to the goods or their sale. The TMEP provides several examples of situations of such "impracticability": natural gas, grain sold in bulk, or chemicals sold only in tanker cars. 

Applicant's goods, the Board observed, "are in no way analogous" to natural gas, grain sold in bulk, or chemicals sold in tanker cars. The Board agreed with Examining Attorney Toby E. Bulloff that the mark OXZGEN is used as a trademark for beverages (which goods applicant had deleted from the application),  not for the identified goods.

The dosing and dispensing caps are an integral component of the bottles in which the beverages are sold, and as Applicant has confirmed, the caps are not sold separately. In other words, consumers are purchasing Applicant's beverages, not the dispensing and dosing caps.

And so the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: WYHA?

Text Copyright John L. Welch 2018.


At 8:15 AM, Anonymous Anonymous said...

WYHA? No, not impractical to put mark on dosing cap. Instead of appeal, did applicant consider examples of many other beverage caps (including dosing caps) with embossed or otherwise affixed marks?

At 9:49 AM, Anonymous Anonymous said...

Looks to me like the mark was added to the bottles digitally, anyway.

At 10:30 AM, Blogger Mike said...

So when the applicant was unable to trademark OXZGENE for beverages, he attempted to get around it by claiming he was just trademarking the cap, and the fact that the bottle that the cap and the trademark were on was just coincidental? That sounds like the college dodge of selling a plastic cup for $5.00 and giving away the beer inside for free...

At 2:54 PM, Blogger Stephen Anderson said...


At 2:23 PM, Anonymous Anonymous said...

What about the fact that the specimens are clearly Photoshop creations?


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