"TORPEDO JUICE" Section 2(d) and Nonuse Cancellation Is a Dud, Says TTAB

The Board denied a petition to cancel a registration for the mark TORPEDO JUICE for "Alcoholic beverages, except beer; Gin; Liquor; Rum" because Petitioner Oregon Grain failed to prove prior trademark rights in support of its Section 2(d) claim, and failed to provide any acceptable evidence to support its nonuse claim. Oregon Grain Growers Brand Distillery Inc. v. Michael Pitsokos, Cancellation No. 92076817 (October 16, 2023) [not precedential] (Opinion by Judge Cheryl S. Goodman).

Oregon Grain claimed prior rights in the identical mark, TORPEDO JUICE, for alcoholic beverages and liquor. Although the issue of the lack of distinctiveness of Oregon Grain's mark was not expressly pled by respondent, the Board deemed it to be pled by implied consent as a part of respondent's challenge to Oregon's claim of priority.

Respondent failed to get any evidence or testimony into the record, but Oregon Grain had the burden of proof on the two claims that it raised.

In order to succeed on its Section 2(d) claim based on common law rights, Oregon had to prove that its mark was distinctive, inherently or otherwise, and also show priority of use. See Otto Roth.

Based on the evidence of record, much of which comprised Ocean Grain's own statements, the Board found that TORPEDO JUICE "informs purchasers that Petitioner’s goods are an" based on the beverage that originated from naval sailors during World War II." And so, the Board concluded that TORPEDO JUICE "merely describes a feature of Petitioner’s goods and is not inherently distinctive for Petitioner’s pineapple flavored vodka."

It was Oregon's burden to demonstrate that acquired distinctiveness prior to the January 11, 2020 filing date of respondent’s application, which served as respondent’s priority date. Oregon used the term for only three months before the critical date and its sales were small (162 bottles in November 2019, 82 in December 2019, and 40 bottles in January 2020). 

[It] cannot be said to have made a substantial impact either in the alcohol market as a whole, or in the vodka category particularly, especially in light of the fact that Petitioner is a small grain distillery whose sales are limited to the state of Oregon.

And so, the Board concluded that Oregon failed to prove acquired distinctiveness and therefore could not prove priority. As a result, Oregon's Section 2(d) claim failed.

As to Oregon's nonuse claim, it had to prove that respondent's mark was not in use when respondent filed its statement of use in the underlying application. Oregon's only evidence consisted of respondent's unverified interrogatory responses. However, unverified responses are not competent evidence. See Fed.R.Civ.P. 33(c); Daniel J. Quirk, Inc. v. Village Car Co., 120 USPQ2d 1146, 1151 n.28 (TTAB 2016). And so, the Board dismissed the nonuse claim.

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Text Copyright John L. Welch 2023.