Tuesday, September 19, 2017

TTAB Test: Is FARM TO TABLE Merely Descriptive of Wines?

The USPTO refused to register the mark FARM TO TABLE, finding it merely descriptive of "wines" under Section 2(e)(1), and also concluding that it failed to function as a trademark under Sections 1, 2, and 45 of the Trademark Act. Applicant argued that the mark "cannot describe wine because 'fresh' wines available literally from farm to table would be unaged and undrinkable grape juice." How do you think this came out? In re Fowles Wine Pty Ltd., Serial No. 79157017 (September 15, 2017) [not precedential] (Opinion by Peter W. Cataldo).

The Examining Attorney submitted Internet web pages and articles from major newspapers, referencing the term "farm to table" in connection with wines, wine pairing, and wine and food events. Applicant Fowles provided a table listing 19 third-party registrations for FARM TO TABLE formative marks for food items and related services (but not including wine).

Failure to Function: “[N]ot every designation adopted with the intention that it performs a trademark function and even labeled as a trademark necessarily accomplishes that purpose…." The crucial question is whether consumers perceive the designation as a mark.

[T]he evidence excerpted above shows that FARM TO TABLE is commonly used in an informational manner in connection with local produce, meats, wines and events featuring these products that are prepared and served together.

Moreover, applicant's own use of the term at its website - displaying FOOD WINES – FARM TO TABLE in large letters above the wording "Farm to Table wines are bright, delicious, and made to match with fresh produce shared among good friends" - conveys that its wines are part of the trend toward locally sourced foods and wines rather than an indicator of source.

In sum, FOOD TO TABLE "functions solely to convey an informational message regarding Applicant’s wines, rather than identifying the source thereof."

Mere Descriptiveness: Based on the evidence discussed above, the Board found FOOD TO TABLE to be merely descriptive of wines because it describes a feature or characteristic thereof, namely that they are locally sourced. The Board rejected applicant's argument that FARM TO TABLE cannot describe wine because "fresh" wines would be unaged and undrinkable grape juice. "FARM TO TABLE wines are not necessarily freshly pressed and unaged, but rather made from grapes grown in the same area as the wineries at which they are pressed and aged, and often are suitable to be paired with local foods. misapprehends the meaning of FARM TO TABLE as applied to wines."

As to the third-party registrations cited by Applicant Fowles, none listed wines among the goods or services. In any event, the Board is not bound by the prior actions of examining attorneys involving different marks, different goods or services, and different evidentiary records.

Conclusion: And so the Board affirmed both refusals.

Read comments and post your comment here.

TTABlog comment: How did you do?

Text Copyright John L. Welch 2017.


At 10:40 AM, Anonymous Anonymous said...

The Board seems to have problems just calling FARM-TO-TABLE a "term-of-art" used in the industry.

At 1:57 PM, Blogger Bob Cumbow said...

FARM TO TABLE could denote any of hundreds of goods or services. What ever happened to "conveys an immediate impression"?

At 2:24 PM, Anonymous Anonymous said...

Whatever ever happened to determining mere descriptiveness by considering the mark as used with the identified goods/services and not in the abstract?

At 10:44 PM, Anonymous Mitch Stabbe said...

My first reaction was that there is something seriously wrong with a system if 19 prior applicants can register a mark for different edible products, but the 20th is told that it cannot do so as well. But, there are many terms or phrases that are commonly used for a category of goods or services that may not be recognized as such when the first applicant files for it. So, it's reasonable that later applicants be denied registration for what has become a descriptive phrase.

That said, here, if there were 19 registrations for FOOD TO TABLE marks, it would only be reasonable if the Board had to say what has changed to warrant different treatment. Oh yes, I forgot, decisions of prior examiners have no precedential value!


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