Thursday, July 21, 2016

TTAB Test: Is "HOME BREWING CO." Merely Descriptive of Beer?

It's not easy to pick a viable trademark for beer, as the Wall Street Journal noted in a recent article, "Hopportunity Cost: Craft Brewers Brawl Over Catchy Names as Puns Run Dry." This applicant sought to register the mark HOME BREWING CO. for beer [BREWING CO. disclaimed], but the Board found the mark to be merely descriptive under Section 2(e)(1). Applicant appealed, arguing that the word home is not descriptive but merely suggests "the sense of community and familiarity, as well as the notions of homeliness and comfort that one associates with their home." How do you think this came out. In re The Homebrewer, LLC, Serial No. 86273728 (July 19, 2016) [not precedential].

Applicant argued that the word "home" means a place of residence, whereas the goods listed  in the application will be produced and sold from a business location, not a residential unit, and by a business, not a family. Therefore the word "home" is not descriptive, but merely suggestive of "the sense of community and familiarity, as well as the notions of homeliness and comfort that one associates with their home." Moreover, "homebrew" and "homebrewing" are popular terms of art in the craft beer industry, and consumers will know that applicant's products are not homebrewed because it is illegal to sell beer produced from one's home

Examining Attorney Jeffrey S. DeFord relied on a Wikipedia entry for "Homebrewing" as the brewing of beer and other beverages in small quantities "as a hobby for personal consumption, free distribution at social gatherings, amateur brewing competitions or other non-commercial reasons."

The Board concluded that the Wikipedia evidence alone established that the applied-for mark "immediately informs prospective  purchasers as to a quality, feature, or characteristic of the identified goods, namely that the target market for Applicant's goods are 'home brewing' enthusiasts seeking to replicate at home the various ... types of beer offer by Applicant, who are seeking a specific taste for their beer." Citing several prior decisions (GASBUYER, SYSTEMS USER, MOUNTAIN CAMPER), the Board observed that "[a] term that alludes to the group to whom an applicant directs its goods or services is merely descriptive."

The inclusion of the non-source indicator "Co." does not "mitigate" the Board's finding of mere descriptiveness.

And so the Board affirmed the refusal.

Read comments and post your comment here.

TTABlog comment: How did you do? BTW, the attorney for applicant is Candace L. Moon of San Diego. She has applied to register the mark CRAFT BREW ATTORNEY for legal services (Serial No. 86504533), relying on Section 2(f). The application has been opposed by 11 law firms or attorneys. Ms. Moon's plight is mentioned at the end of the Wall Street Journal article.

Text Copyright John L. Welch 2016.


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