TTAB Finds "BRILLIANT ROSE" Generic for . . . Guess What?

Those of you who are diamond aficionados (and I don't mean baseball fans) will likely know the answer to the question posed. Applicant BRTM Holdings applied to register, on the Supplemental Register, the proposed mark BRILLIANT ROSE for "diamonds, laboratory grown diamonds and jewelry," but the Board found the term to be generic for the goods. "Applicant’s evidence reinforce[d] rather than contradict[ed] our conclusion that the relevant consumer will perceive BRILLIANT ROSE as naming the genus of diamond of a particular cut." In re BRTM Holdings LLC, Serial No. 97503026 (February 21, 2025) [not precedential] (Opinion by Judge Elizabeth A. Dunn).

Whether a particular term is generic is a question of fact. The genericness inquiry involves a two-part test: “First, what is the genus of goods or services at issue? Second, is the term sought to be registered ... understood by the relevant public primarily to refer to that genus of goods or services?” H. Marvin Ginn Corp. v. Int'l Ass'n of Fire Chiefs, Inc., 782 F.2d 987, 990 (Fed. Cir. 1986).

"Generally, the application’s (or registration’s) description of the goods and services adequately defines the genus." The Board found the identification of goods - diamonds, laboratory grown diamonds and jewelry - to be "an adequate definition of the genus at issue." It found the "relevant public" to be consumers who buy or use diamonds, laboratory grown diamonds and jewelry.

As to consumer perception, the Board first looked to dictionary definitions of the constituent terms. "The term BRILLIANT is defined as 'a gem (such as a diamond) cut in a particular form with numerous facets so as to have special brightness or brilliance' and 'ROSE CUT' is defined as a form in which gems (such as diamonds) are cut that usually has a flat circular base and facets in two ranges rising to a point."

The record evidence further included articles regarding the origin of the BRILLIANT and ROSE cuts,  articles regarding the availability of new cuts through laser tools and computer-aided design, and corroborative industry references by jewelers.

Applicant BRTM pointed to 33 third-party use-based registrations for jewelry, all of which have the term ROSE in the registered mark. The Board was unimpressed. "Each of the marks combine ROSE with additional non-descriptive (or non-generic) terms. *** In none of the third-party marks has ROSE been combined with another name for a type of jewelry cut and found to be registrable."

The Board then turned to a consideration of the proposed mark as a whole. "More specifically, we consider whether the combination of generic terms results in a term which is more than the sum of its parts."

The evidence showed that "there is a diamond cut developed over the last twenty years that combines characteristics of the brilliant and rose diamond cuts." The record included advertisements for "brilliant rose" cut jewelry, as well as an excerpt from BRTM's own’s website: "The makers of the Brilliant Rose diamond put together over 30 years of experience in the field of diamonds, to discover and develop the breakthrough cut."

In view of the evidence of record, the meaning of the individual terms BRILLIANT and ROSE as cuts of diamonds in the jewelry industry, the mixed cuts of diamonds made possible by technology, and the burgeoning third-party use of BRILLIANT ROSE to designate a type of diamond, we find that the Examining Attorney [Tejbir Singh] has carried his burden of demonstrating that the relevant consumer of diamonds and jewelry understands BRILLIANT ROSE to refer to the genus of cut diamonds or jewelry.

BRTM argued that the "limited evidence” of third-party uses was insufficient to demonstrate generic use. The Board observed, however, that "[the sufficiency of evidence does not relate to quantity, especially where the industry evidence indicates that technology advances are creating new goods. So long as the evidence shows that the term is perceived as generic by the relevant consumer, the proposed term may be in exclusive use by a few early adopters of the new technology and still be found to be generic."

And so, the Board affirmed the refusal.

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Text Copyright John L. Welch 2025.