Wednesday, May 05, 2021

TTAB Finds DENVER MIX Generic for ..... Guess What?

Concluding that DENVER MIX "is the name of a key aspect of popcorn, specifically, the flavor of the popcorn," the Board affirmed a refusal to register the proposed mark on the ground of genericness. In the alternative, the Board found the term to be merely descriptive and lacking in acquired distinctiveness. In re Doc Popcorn, LLC, Serial No. 88151165 (April 29, 2021) [not precedential] (Opinion by Judge Kuhlke)

Genericness: The Board found the genus of the goods to be "popcorn" and the relevant consumers to be the general public. 

Examining Attorney Mark Shiner maintained that "[i]n relation to popcorn, the evidence shows that the wording 'Denver' when used alone or together with 'mix' means the combination of white cheddar cheese popcorn and caramel popcorn." He submitted 25 examples of third-parties using the term DENVER MIX and 13 using the term DENVER alone "to refer to a key aspect of the popcorn, specifically the flavor mixture of caramel and white cheddar."

Applicant Doc Popcorn's specimen of use described DENVER MIX as a cheddar/caramel flavor: “Snowy white kernels of Triple White Cheddar slaloming down Rocky Mountains of Caramel Bliss, creating an incredible flavor sensation.”

The Board concluded that DENVER MIX is generic for popcorn.

Acquired Distinctiveness: Doc Popcorn claimed distinctiveness under Section 2(f), thereby conceding that DENVER MIX is merely descriptive of popcorn. Moreover, in light of the record evidence, the Board concluded that the proposed mark is highly descriptive. Therefore, applicant's burden of proof was "commensurately high." 
The Board applied the SnoWizard/Converse factors in determining whether DENVER MIX has acquired distinctiveness. Applicant has used the mark for more than six years and spent some $6500 in advertising per year. From 2014 to 2019 its annual sales have increased from $110,000 to $220,000. Doc Popcorn did not provide any market context for those numbers. 
The Doc submitted declarations from seven customers and one franchisee asserted that Applicant "is the owner of the mark sought to be registered," that no others have "the right to use said mark in commerce," and that they recognize DENVER MIX "is owned by the Applicant." 
The Board observed that six years of use of a highly descriptive mark "is not particularly long." Moreover, the third party uses of the term were more than "inconsequential" or "infringing." In fact they were substantial enough to support a finding of genericness. The form declarations from six customers and one franchisee constitute "an infinitesimally small portion of potential consumers of popcorn."

All seven are identical in substance, having been written on preprinted forms with space saved for the declarant to add his or her location of residence, signature, printed name and date. Form declarations such as these may not "actually reflect the views of the declarants" and are entitled to "little weight."

In sum, the Board found the probative value of these declarations to be extremely limited. 
The Board concluded that, "[g]iven the highly descriptive nature of Applicant’s proposed mark, this record does not support a finding of acquired distinctiveness." And so, the Board affirmed both the genericness refusal and the alternative mere descriptiveness refusal.  
Read comments and post your comment here.

TTABlogger comment: What is Boston Mix? Cheese popcorn, popcorn shrimp, and baked beans.

Text Copyright John L. Welch 2021.


At 9:09 AM, Anonymous Anonymous said...

Is this the TTAB's new thing? Entertaining arguments that a mark may have acquired distinctiveness while simultaneously being generic? A mark either functions as a source identifier or it doesn't. If the mark is generic then it cannot acquire distinctiveness because it is incapable of identifying a source of goods. At least this one isn't at odds with itself like the recent Artesano rejection. Based on the way that these generic rejections are going, I expect we'll see a generic rejection appealed up to the Supreme Court within the next couple years.

(On that note, I looked back at the TTABlog comments on the Artesano post, and someone left a great comment at 2.59 that day parsing out how off-path the generic analysis has become.)

At 10:28 AM, Anonymous Anonymous said...

Never heard of it, and neither had anyone in my small, unscientific survey.

At 12:01 PM, Anonymous Anonymous said...

I suppose it is irrelevant that I have never, ever heard anyone call popcorn DENVER MIX, or refer to Denver in any way when talking about popcorn.

So I will put my head back under the rock.


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