A NEW KIND OF SODA Fails to Function as a Trademark for Beverages, Says TTAB

The Board upheld a refusal to register the proposed mark A NEW KIND OF SODA on the Supplemental Register, for "Non-alcoholic sparkling fruit juice beverages; non-alcoholic water-based beverages," finding that the phrase fails to function as a trademark under Sections 1, 2 and 45 of the Trademark Act. Evidence of third-party use of the phrase "a new kind of soda," mixed in with applicant's own usage, took the fizz out of applicant's arguments. In re Olipop Inc., Serial No. 90381174 (September 21, 2023) [not precedential] (Opinion by Judge Thomas V. Shaw).

Based on the Internet evidence submitted by Examining Attorney Edward Fennessy, the Board found that "the phrase 'a new kind of soda' is commonly used in the beverage industry to identify sodas that differ from previous types or 'generations' of soda products. For example, Wave, Maine Root, Shrub, Booch Pop, No-Cal, GINSENG UP, Holy Cross, and even Dr Pepper [in 1904] have been described as 'a new kind of soda.'"

Because consumers are accustomed to seeing “a new kind of soda” commonly used in beverage advertising—much less the phrase “a new kind of ___” used in advertising in general—they would not perceive it as a mark identifying the source of Applicant’s goods but rather as merely conveying an informational message. Eagle Crest, 96 USPQ2d at 1229.

Applicant argued that “none of the goods in these references are even remotely similar to Applicant’s healthy tonic goods, and none use A NEW KIND OF SODA, which provides a wholly different commercial impression in Applicant’s specific context.” According to Applicant, it "does not use A NEW KIND OF SODA to mean ‘recent,’ but rather ‘unique,’ comparing its healthy qualities to the traditionally unhealthy qualities of soda, which is apparent given Applicant’s marketplace context." The Board was unimpressed: "consumers likely will view OLIPOP soda as one soda in a long line of 'new' sodas that have evolved to suit changing consumer tastes."

Applicant introduced copies of fifteen third-party registrations for marks comprised of the phrase “A NEW KIND OF ___, but only two of the registrations, A NEW KIND OF DEODORANT and A NEW KIND OF DEALERSHIP, have "the same simple declaratory structure" as Applicant’s mark. "These two registrations do not outweigh the Examining Attorney’s evidence." Moreover, as we practitioners have been repeatedly informed, prior actions by examining attorneys in other cases "have little evidentiary value and are not binding upon the USPTO or the Board."

And so, the Board affirmed the refusal.

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Text Copyright John L. Welch 2023.