Thursday, October 14, 2010

"AGAVERITA" Merely Descriptive of Non-Alcoholic Cocktail Mixes, Says TTAB

The Board sustained this Section 2(e)(1) opposition to registration of the mark AGAVERITA in stylized form, finding it merely descriptive of "nonalcoholic cocktail mixes." Tequila Cuervo La Rojena S.A. de C.V. v. David Kent Axtell, Opposition No. 91188596 (September 30, 2010) [not precedential].

The Board began by noting that Applicant's goods, as identified, are broad enough to include (and admittedly do include) mixes used to make margaritas, which are tequila-based cocktails. The evidence showed that "rita" is a common shorthand name for a margarita and in fact appears as a suffix in several registered marks for margarita beverages. Moreover, "agave" is a form of tequila or the type of plant from which tequila is derived. The Board therefore found that "the combined term AGAVERITA describes a margarita cocktail made with an agave form of tequila."

Because AGAVERITA is descriptive of the cocktail, it is merely descriptive of the purpose or function of applicant's mixes used to make the cocktail, that is, an agave-based margarita cocktail.

The Board further found that the particular stylization or display of the mark was not so distinctive as to make the mark registrable even with a disclaimer of the descriptive words.

And so the Board sustained the opposition.

TTABlog note: This is one of those times when, half way through the posting, I wish I had picked another case.

Copyright John L. Welch 2010.


At 10:07 AM, Anonymous Anonymous said...

I may be leading too cloistered a life, but I sure don't see this mark as descriptive. If you walk into a bar and ask for an agaverita, are they going to know what you are talking about?

At 10:24 AM, Blogger John L. Welch said...

If the bartenderperson is named "Rita," she may respond, "Agave to you!"


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