TTABLOG TEST: Is D'AVOCADO Generic for Avocado-Based Chocolate Products?

The USPTO refused to register, on the Supplemental Register, the term D'AVOCADO for "high pressure pasteurized avocado based chocolate confections, mousses, spreads, puddings and frozen desserts," on the ground of genericness. Keeping in mind that the Board, in the past year or so, has found MALAI generic for ice cream products and BLUEBERRY MUFFIN generic for beer, how to you think this appeal came out? In re D’Avocado, LLC, Serial No. 87704536 (July 28, 2020) [not precedential] (Opinion by Judge Peter W. Cataldo).

The examining attorney required a translation of D'AVOCADO, contending that many French speakers use the term as a generic identifier for avocado and products made of avocado. Applicant maintained D’AVOCADO is "a compound mark comprising of [sic] the English terms ‘D’ and ‘AVOCADO’ joined by an apostrophe," so that no translation is required. The Board found the USPTO's evidence to be ambiguous: "it is not clear ... whether the term 'd’avocado' translates to 'avocado' or whether the French language webpages simply adopt the English word 'avocado.'" Therefore, the Board found the translation requirement inappropriate. [Seems pretty clear to me that the term means AVOCADO, with the "d" being just a fancy, meaningless add-on - ed.].

Turning to the genericness issue, the Board as usual found the genus to be appropriately described by the identification of goods in the application, rejecting applicant's proposed "plant-based chocolate." Applicant feebly argued that the relevant consumers are English speakers in Midwest supermarkets ("from Pittsburgh to Fargo), but these restrictions did not appear in the application at issue.

As to consumer perception, the Board noted that in applicant's specimen of use and other materials, there was no use of D’AVOCADO "or other indicia to suggest the purchasing public would perceive it as a common name for the goods rather than a mark." Nothing in the USPTO's evidence showed use of the term in connection with the identified goods.

The Board found the facts of this case to be "reminiscent" of several prior decisions in which a mark combining a generic term with a foreign article or other word changed the commercial impression of the phrase: LA YOGURT for yogurt, GLACÈ LITE for ice cream and frozen desserts, LE CASE for jewelry and gift boxes (CASE disclaimed).

The Board concluded that "the sparse and inconsistent record of any meaning of 'd’avocado' in a foreign language or English, as well as the very limited evidence of consumer perception of the term, does not point to the mark as a generic name of the class of goods." The Board therefore reversed both the genericness refusal and the translation requirement.

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TTABlogger comment: I find this case reminiscent of the generic ingredient/flavor cases.

Text Copyright John L. Welch 2020.