Friday, December 11, 2009

"ORCHID CREAM VANILLA" Merely Descriptive of Snowball Flavor Concentrate, Says TTAB

In this modern day Battle of New Orleans, the TTAB granted a petition for cancellation of a registration for the mark ORCHID CREAM VANILLA, finding the mark to be merely descriptive of "flavoring concentrate for non-nutritional purposes, namely, flavoring concentrate for shaved ice confections" [CREAM VANILLA disclaimed]. The Board declined to reach the alternative ground of genericness. Southern Snow Manufacturing, Inc. v. Snowizard Holdings, Inc., Cancellation No. 92044522 (December 10, 2009) [not precedential].

For those of us who think that a snowball is something to be hurled at a sibling's head, Judge Bucher offers this description:

"A snowball, when it is prepared correctly, is a perfect blend of not only syrup and ice but art and science as well. Rich syrups, the color of any one of infinite possibilities of home-concocted flavors, flood the snowy surface and then, through capillary action, spread downward bringing color and taste to the icy fluff." -- "Turning Ice Into Gold," by Errol Laborde, NEW ORLEANS MAGAZINE, July 1980, at 66.

Petitioner Southern Snow and Respondent Snowizard are competing vendors of flavor concentrate used in making snowballs. The Board, in order to fully comprehend the meaning of ORCHID CREAM VANILLA, began with a consideration of each word individually and then proceeded to a broader view of the snowball market.

The parties did not dispute that "cream" is merely descriptive of "(1) certain flavors of finished snowballs, (2) some RTU [ready-to-use] syrups irrespective of exactly how they may have been concocted, as well as of (3) creamy flavoring concentrates, as sold by both parties."

Moreover, "vanilla" is "highly descriptive of an essential flavoring component of respondent's concentrate, the syrup and the ultimate snowballs derived therefrom."

Thus at the core of this spherical controversy is the word "orchid": i.e., "whether, when the term 'orchid' precedes the words 'cream vanilla, this three-word composite immediately conveys information about a feature of the labeled goods."

Two dictionary definitions of "orchid" first list an ornamental flower, and second refer to the color purple. Competitors "consistently use "descriptive indicators for both color and flavor in the general flavoring nomenclature (e.g., black cherry, blue raspberry, clear grape, green apple, pink lemonade, etc.)."

Given this pattern, it would be entirely consistent with industry practice that "orchid cream vanilla" would be a creamy flavor of vanilla that is colored purple. Moreover, there is every indication from this record that the same name (e.g., black cherry, or "orchid cream vanilla") is used for the concentrates by manufacturers and vendors, as well as downstream for the resulting syrups, and finally on the ultimate consumer product, the snowball.

In determining the meaning of ORCHID CREAM VANILLA, the Board found it appropriate to explore "how snowball consumers in the greater New Orleans area would have perceived" the term. The Board noted that Snowizard's "own newsletter points toward the long and popular history of the 'orchid cream vanilla' flavored snowball in the New Orleans area," and Snowizard refers to "orchard cream vanilla" as a flavor with "flowery aromatics" and a lavender color.

To put the finishing touch on its argument, Petitioner pointed to plant biology and the etymology of words, but the Board found this argument, albeit to be entertaining but superfluous:

Petitioner emphasizes throughout this prosecution that the vanilla plant is actually an orchid plant. Moreover, curiously, the word “Orchid” is derived from the Greek word for a male characteristic (testicle) while the word “Vanilla” is derived from the Latin word for a female characteristic (vagina). While we find this yin-and-yang argument entertaining, we find it unnecessary to claw into classic languages or the subconscious mind to decide the issue before us.

The Board found that "the flowery, purple color of the goods is sufficient for us to conclude that the leading word 'orchid' alone immediately conveys information about respondent's goods."

And so, it ruled that ORCHID CREAM VANILLA "immediately conveys information about the purple color and the overall cream and vanilla flavors of the goods," and therefore the term is merely descriptive of the goods.

TTABlog comment: The only colored snowballs I've seen here in the north have been yellow, and you don't want to eat one of those.

Text Copyright John L. Welch 2009.


At 6:20 PM, Blogger Pamela Chestek said...

Color me deceived. I thought it would be orchid and vanilla flavored. Misdescriptive, anyone?


Post a Comment

<< Home