WYHA? TTAB Affirms 2(e)(1) Refusal of "TEQUINI" As Merely Descriptive of Tequila Martini
Examining Attorney Mayur Vaghani refused registration of the mark TEQUINI for "alcoholic beverages, namely tequila and prepared alcoholic cocktails containing tequila," finding it to be merely descriptive under Section 2(e)(1). The record included recipes for a "tequini" from more than a dozen websites. Would you have appealed? In re Tequila Cuervo La Rojena, S.A. de C.V., Serial No. 77455224 (June 21, 2010, mailed July 7, 2010) [not precedential].
Applicant submitted excerpts from two dictionaries that did not include an entry for "tequini," contending that TEQUINI "is not a recognized word in the English language" and that the smushing together of TEQUILA and MARTINI "is incongruous and would require consumers to think about what meaning is conveyed by TEQUINI."
The Board was not moved by Applicant's argument. It observed that just because a term is not found in a dictionary does not mean that it is not descriptive. The Internet evidence convinced the Board that "TEQUINI immediately describes and indeed is used as the name of a particular type of cocktail (i.e., a tequila Martini)."
Nothing in the term is incongruous, indefinite or ambiguous when considered in relation to applicant’s goods and, consequently, no imagination, cogitation or gathering of further information would be necessary in order for customers to perceive the merely descriptive significance of TEQUINI. TEQUINI immediately describes the nature of the product.
And so the Board affirmed the refusal.
TTABlog comment: Genericness, anyone? Pam Chestek recently suggested a new category: WYHF? Would You Have Filed? This one may belong there.
Text Copyright John L. Welch 2010.
posted by John L. Welch @ 7/23/2010
2 comments
2 Comments:
I think the footnotes are a lot more interesting than the actual opinion.
FN2 gives some wiggle room to challenging disclaimer requirements. Does this mean that Examiners have to look into the record to see why words were actually disclaimed?
And FN5 opens the door to using any website evidence simply because "an internet user in the United States looking for [anything] could retrieve and view [a particular] site." This was a pretty easy case because TEQUINI is obviously descriptive but how much weight do we want to give to how words are treated internationally? If this were the only instance of TEQUINI in use, would the Board reach the same result?
It's early but I could use a tequini already.
Ann Lamport Hammitte and I wrote an article about foreign website evidence a few years ago. I don't see why the Board should give any weight to a foreign website on the subject at hand: viz., what does TEQUINI mean in this country.
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