Wednesday, September 08, 2010

Prededential No. 34: TTAB Affirms Refusal to Register "Beer Glass and Stand" Packaging for Lack of Distinctiveness

In a 30-page opinion, the Board affirmed a refusal to register the alleged mark shown below for "beer," finding that it lacked both inherent and acquired distinctiveness. Applicant Brouwerij Bosteels contended that the mark -- consisting of a flask, flask holder/stand, scrollwork, and wording -- comprises unique and distinctive product packaging for its Pauwel Kwak brand of beer, but the Board saw it as a mere refinement of a common shape. Moreover, Applicant's proof of acquired distinctiveness fell quite flat. In re Brouwerij Bosteels, 96 USPQ2d 1414 (TTAB 2010) [precedential].

Pauwel Kwak

After some initial skirmishing over whether an open container may qualify as "packaging" for beer, the Board construed the goods to be "beer sold in restaurants, bars, pubs and the like," and it deemed the purported mark to be "trade dress in the nature of product packaging." The issues to be decided were "whether the alleged mark, i.e., the beer glass and stand with wording and scrollwork, is inherently distinctive or has acquired distinctiveness for beer sold in restaurants, bars, pubs and the like."

Inherent Distinctiveness: Examining Attorney Jennifer M. Martin submitted Internet web pages showing more than ten examples of products described as Yard, Half Yard, or Foot of Ale Glass with stand. The Board, applying the Seabrook test for packaging trade dress, concluded that the applied-for mark "is a mere refinement of a common Yard, Half Yard, or Foot of Ale glass with stand" and therefore "falls short of being inherently distinctive" for Applicant’s goods.

Acquired Distinctiveness: The Board agreed with the Examining Attorney that, because the alleged mark "is highly similar to a specific type of glass and stand for serving and holding beer," Applicant's claim of twenty-five years of use is "insufficient to prove acquired distinctiveness, especially without evidence of the extent of such use." "[M]ore evidence would be necessary to show that it has become distinctive of applicant’s goods, e.g., affidavits or declarations from the ultimate purchasers and/or unsolicited publicity and references in the media."

In this case, there is simply no evidence that the alleged mark has ever been promoted by applicant as its trademark in the United States using "Look for ..." promotions, and the record is devoid of evidence that anyone other than applicant regards a beer glass and stand with wording and scrollwork as a trademark for beer sold at restaurants, bars, pubs and the like.

Applicant also feebly pointed to its ownership of a registration for the two-dimensional mark shown below, as a basis for transferred acquired distinctiveness. The Board, however, observed that each case must be decided on its own record, and furthermore that the registered mark "is not the legal equivalent of the three-dimensional beer glass and stand mark."

And so the Board affirmed the refusal to register under Sections 1, 2, and 45 of the Act on the ground that the applied-for mark fails to function as a trademark.

TTABlog comment: Why wasn't this a product configuration, and thus incapable of being inherently distinctive under Wal-Mart? Because the goods were not beer glasses or steins, but beer.

Text Copyright John L. Welch 2010.


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