Friday, October 14, 2005

TTAB Squashes "GRAPE RANCH" 2(e)(1) Mere Descriptiveness Refusal

Jack D. Whiteman, proprietor of Grape Ranch Vineyards of Okemah, Oklahoma, successfully fended off a PTO mere descriptiveness refusal of his mark GRAPE RANCH for wines. In re Whiteman, Serial No. 78281418 (Sept. 28, 2005) [not citable].

The Examining Attorney relied primarily on dictionary definitions in contending that the mark merely describes "wine that is produced on a large farm where grapes are grown." She also submitted two Internet articles showing use of the term "grape ranch," other articles showing use of the term "ranch" in the trade names of wine producers, and third-party registrations covering wines in which the term "ranch" is disclaimed.

Whiteman argued that the mark is merely suggestive, noting that to most Americans a "ranch" is "a place where cowboys wrangle steers and other livestock," not where wine is produced. He pointed to his logo and asserted that consumers would view the marks "as an amusing and incongruous term conjuring up the image of cowboys herding grapes instead of livestock."

The Board agreed with Whiteman that to most customers "ranch" primarily means a place "where livestock is raised, and not primarily where grapes are grown or wine is made." The two Internet articles showing use of "graph ranch" come from "a book review" and "an article about a book author."

"The mere two instances of record where 'grape ranch' is arguably used in a descriptive manner do not show that consumers would be accustomed to such meaning. Moreover, these two examples do not show use of the term in the trade, but rather in a news context, which could be misuses by journalists and writers."

As to references to wineries that use "ranch" in their names, the Board noted that in most instances the names include the words "winery" or "vineyards," suggesting that the word "ranch" is not merely descriptive of wine. With regard to third-party registrations with "ranch" disclaimed, the Board brushed those aside with the standard observation that it must decide each case on its own merits, unbound by prior PTO actions.

In sum, the Board found the term "grape ranch" to be incongruous when used as a trademark for wine.

"... applicant appears to have applied a suggestive and imaginative twist to a product name that rises above the level of mere descriptiveness and whose use would hardly remove a desired or apt descriptive characterization from the trade repertoire of other makers and sellers of [the goods]." In re Shutts, 217 USPQ 363, 364-65 (TTAB 1983) [SNO-RAKE not merely descriptive for snow removal hand tool].

Although conceding that the issue was "a close one," the Board reversed the refusal to register, noting that "if there is any doubt about the merely descriptive character of a mark, that doubt is resolved in applicant's favor, permitting publication of the mark so that an interested third party may file an opposition to develop a more comprehensive record."

TTABlog note: Okemah, Oklahoma is perhaps best known as the birthplace of the legendary Woody Guthrie. Grape Ranch Vineyards is a sponsor of the annual Woody Guthrie Folk Festival held there.

TTABlog comment: When the Board suggests, in an ex parte case, that a "more comprehensive record" might be developed in an inter partes proceeding, I take that as a signal that the judge may be aware of the existence of material more pertinent than that submitted by the PTO. For example, a TTAB judge might conduct his or her own Internet search and thereby uncover additional information that the Examining Attorney did not proffer. Of course, the Board cannot take judicial notice of that additional material; it must decide the case on the record presented. I wonder if something like that happened here?

Text Copyright John L. Welch 2005.


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