Wednesday, January 13, 2010

WYHA? TTAB Finds "INFUSED CIGARS" Generic for ... Guess What?

I don't smoke cigars, so I though an infused cigar was a cigar that would explode when you lit the fuse. Apparently not. The Board affirmed a refusal to register INFUSED CIGARS for cigars, finding it to be a generic term for cigars infused with flavor. Would You Have Appealed this refusal? In re Jonathan Drew, Inc. dba Drew Estate, Serial No. 78979742 (December 31, 2009) [not precedential].

The Board began by finding that the genus of goods is "cigars" and it ruled that the relevant public includes not only cigar "aficianodos" but also "ordinary members of the general public."

As to the meaning of the term, Examining Attorney Priscilla Milton relied on dictionary definitions of "infused," and on website and Lexis/Nexis evidence showing that, as applied to cigars, the word refers to "cigars that are flavored, or have been treated or processed in some way to absorb a flavor." Applicant Drew Estate admitted that its goods are "flavored cigars." Consumer website evidence also showed the public's familiarity with the term INFUSED CIGARS and its significance.

To be blunt, the Examining Attorney's evidence established, prima facie,"that the primary meaning of INFUSED CIGARS is generic for 'cigars.'"

Even if, as Applicant claimed, it is a "leading maker" or "pioneer" of infused cigars, and even if Applicant coined the term, these facts do not overcome the genericness of the term or make it registrable.

While sellers may recognize applicant as a well known maker or blender of cigars and that applicant is a significant source for "infused cigars," they nevertheless use the term "infused cigars" to refer to a type of cigar, rather than to brand of cigar. The record is clear that they do not recognize "infused cigars" to indicate the source of those cigars only in applicant.

Applicant argued that many of the articles and/or websites referred to Applicant's products (e.g., "Sauza Tequila Infused Cigar"), but the Board found this argument to be "irrelevant because ... cigar retailers use the term 'infused cigars' to refer to a type of cigar, rather than to a brand of cigar." Moreover, many other companies refer to their cigars as "infused cigars" and the flavored cigars of other producers are advertised or promoted as infused cigars.

The Board observed that this is not a case of "mixed" usage of the term, sometimes in a generic sense and sometimes as a mark. Here, there was no evidence of use or recognition of "infused cigar" as a mark.

Therefore the Board concluded that INFUSED CIGARS is incapable of distinguishing Applicant's goods and is ineligible for registration on either the Principal or Supplemental Register.

TTABlog note: Frank Herrara keeps up with tobacco-related trademark developments at his blog, Herrara on Cigar Law. He also hosts a cigar party at the INTA annual meeting, so if you are interested, give him a holler.

Text Copyright John L. Welch 2010.


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