"DEHYDRATION RELIEF FAST" Incapable of Functioning as a Trademark for Hydration Solution Products, Says TTAB
Finding Applicant Drip Drop's proposed mark DEHYDRATION RELIEF FAST for electrolyte powders and electrolyte replacement solutions, to be incapable of functioning as a trademark, the Board affirmed a refusal to register the phrase on the Supplemental Register. Dictionary evidence and third-party usage convinced the Board that the phrase "would be perceived as merely informing consumers about the fast-acting quality of the product, and not identifying its source of origin." In re Drip Drop Hydration Inc., Serial No. 88090507 (May 18, 2021) [not precedential] (Opinion by Judge David K. Heasley).
“Slogans and other terms that are considered to be merely informational in nature, or to be common laudatory phrases or statements that would ordinarily be used in business or in the particular trade or industry, are not registrable.” In re Eagle Crest Inc., 96 USPQ2d at 1229 [ONCE A MARINE, ALWAYS A MARINE]. As Professor McCarthy has observed, “As a matter of competitive policy, it should be close to impossible for one competitor to achieve exclusive rights in such common advertising slogans….” 1 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 7:23 (5th ed. March 2021 update).
Drip Drop admitted that DEHYDRATION RELIEF FAST is descriptive of its “hydration solution products,” but maintained that the slogan is “a far cry from merely informational wording.” The Board, however, found that Examining Attorney William T. Verhosek’s dictionary references and third-party examples established the merely informational nature of DEHYDRATION RELIEF FAST.
Drip Drop pointed to its specimen of use (shown above) where "Dehydration Relief Fast" appears in an area separate from the informational portion of the package, with the word "Fast" displayed in bright blue. The Board pointed out, however, that Drip Drop's application claims the wording in standard character form. Furthermore, “[r]efusal is proper if the words of the proposed mark are used only in their ordinary sense as part of the advertising statement….” In re Post Properties, Inc., 227 USPQ 334, 335 (TTAB 1985). This is true even if the words are conveyed in a trademark manner. Cf. Univ. of Kentucky v. 40-0, 2021 USPQ2d 253, at *32. In any case, the stylization of the subject phrase "does not and cannot create an impression on purchasers separate and apart from the unregistrable informational phrase itself."
Concluding that the proposed mark would be perceived as merely informing consumers about the fast-acting quality of the product, and not identifying its source of origin, the Board affirmed the refusal to register.
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TTABlogger comment: Is this a WYHA?? I think so.
Text Copyright John L. Welch 2021.
posted by John L. Welch @ 5/20/2021
1 comments
1 Comments:
Is this mark merely descriptive? Definitely. I would even say it's highly descriptive and that it would take a great deal of evidence of acquired distinctiveness to ever render it registrable on the Principal Register under 2(f).
But I disagree it's *incapable* of ever becoming a trademark, and therefore I think it should be registrable on the Supplemental Register. The problem with this "merely informational" refusal is that it's indistinguishable from an ordinary merely-descriptive refusal. Here the Board stated, "Because the proposed mark would be perceived as merely informing consumers about the fast-acting quality of the product, and not identifying its source of origin, it is incapable of functioning as a trademark." But for all intents and purposes, that's the equivalent of saying the mark is merely descriptive because it would be perceived as describing a characteristic or purpose of the goods, namely that they provide dehydration relief fast.
A merely-descriptive term is registrable on the Supplemental Register, but are all merely-descriptive terms also "merely informational" and unregistrable on the Supplemental Register. If not, what's the difference between "merely descriptive" and "merely informational"? I don't think the Board knows.
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