Friday, July 20, 2007

TTAB Affirms Mutilation Refusal of "VIVE LA VIDA LOW CARB"

Desperate to get away from the mine run of TTAB 2(d) decisions, the TTABlog today features a rather colorless mutilation refusal affirmed by the Board. Applicant Ramon Jaquez failed in his attempt to register the mark VIVE LA VIDA LOW CARB for bottled drinking water because his specimen of use was not a "substantially exact representation of the mark as intended to be used." (See Rule 2.51(b)). In re Jaquez, Serial No. 76597151 (July 11, 2007) [not precedential].

When Applicant Jaquez filed his Statement of Use, Examining Attorney John Dwyer concluded that the specimen did not support the mark shown in the application drawing. He advised Jaquez that this problem could not be cured by amendment of the drawing because that would be an improper material alteration of the mark. The only solution was for Jacquez to submit a substitute specimen. Applicant appealed instead.

The problem, of course, is that "Vive La Vida" appears on the same line as and adjacent to the phrase "is Live The life." [The odd capitalization is in the original - ed.]. The words "Low Carb" appear below that verbiage. The Examining Attorney maintained that consumers would not view VIVE LA VIDA LOW CARB as a separate mark, but would see it only as part of the phrase VIVE LA VIDA IS LIVE THE LIFE. LOW CARB. Thus, he held, the mark appearing on the specimen does not match the drawing.

Applicant Jaquez lamely argued that Spanish speakers would recognize the phrase IS LIVE THE LIFE as "merely informational," and that the consuming public in general would view that wording as an English translation of VIVE LA VIDA and not part of the mark.

Reviewing a few precedents, the Board stated the question to be whether "the element sought to be registered creates a commercial impression separate and distinct from the other elements of the mark." It sided with the PTO, concluding, not surprisingly, that consumers would not view VIVE LA VIDE LOW CARB as a separate element.

As to Applicant's translation/informational argument, the Board said "no way."

"The mere fact that one portion of the mark as it appears on the specimens may translate another portion does not result in the translation creating a separate commercial impression, especially when all of the wording in the mark is displayed as a single expression on two lines in similar size and font."

The Board therefore affirmed the refusal.

TTABlog comment: An appeal like this one makes it understandable why the Board affirms more than 80 percent of the PTO's refusals to register.

Text John L. Welch 2007.


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