Thursday, April 17, 2014

Test Your TTAB Judge-Ability: Is "N2WINES" Merely Descriptive of Wine Sold in Kegs?

N2Wines applied to register the mark N2WINES for "wine sold in kegs," but the PTO refused registration under Section 2(e)(1). The examining attorney deemed the mark merely descriptive of the goods, maintaining that "N2" is the symbol for nitrogen, an inert gas used in connection with wine tapping systems. Applicant's own website stated that its wine is "pushed through a tap system similar to draft beer, by an inert nitrogen (N2) based gas blend." How do you think this came out? In re N2Wines LLC, Serial No. 85680969 (April 15, 2014) [not precedential].

The examining attorney also relied on Internet articles and advertisements referring to other wine tapping systems that use nitrogen to preserve and dispense wine. The applicant and the examining attorney were seemingly in agreement that N2 is a recognized symbol for nitrogen.

The Board, however, found that "N2" takes on a different meaning and will be perceived by consumers in a manner that is not descriptive. The record supported applicant's assertion that "N2 when used in N2WINES is a double entendre meaning 'into wines.'"

Examples of marks that have been found to be registrable double entendres include SUGAR and SPICE for bakery products, SHEER ELEGANCE for pantyhose, SHEER PERFECTION for makeup for legs, FAST'N EASY for pre-cooked meats, and HAY DOLLY for self-loading trailers for hauling bales.

Applicant submitted evidence of registered marks and domain names in which "N2" means "into": for example, Dance N2 Shape; N2 Pottery, N2 Learning, N2 Graphics, and N2WIN.

N2WINES is a double entendre meaning "into wines," which implies that consumers of applicant's goods are interested in wine. "It does not immediately convey an idea of any ingredient, quality, characteristic, feature, function, purpose or use of the goods, and thus is not merely descriptive of the goods."

The Board therefore reversed the refusal.

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TTABlog comment:  Well, how did you do?

Text Copyright John L. Welch 2014.


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