TTABlog Test: Must "DANK" be Disclaimed in DANK TANK for Ale and Beer?

The USPTO refused to register the proposed mark DANK TANK for "Ale; Beer," without a disclaimer of the word "DANK." The Examining Attorney maintained that the term DANK "means or refers to ‘…sticky, juicy, very pungent and of a high level’ and ‘[v]ery hoppy, cloudy IPAs with high alcohol content and flavors with a very funky taste.’" Applicant Sweetwater Brewing argued that DANK TANKS is a unitary mark and a double entendre, and so disclaimer of DANK should not be required. How do you think this came out? In re Sweetwater Brewing Company, LLC., Serial No. 87772674 (May 3, 2020) [not precedential] (Opinion by Judge Linda A. Kuczma)

Examining Attorney Richard J. Struck relied on a Detroit Free Press article and on an Urban Dictionary entry for the definitions of "dank." Third-party websites showed use by multiple third parties of "dank" to describe beer and ale. For example, ". . . you see, cannabis and hops are relatives, and both get their flavors and aromas from compounds called terpenes. That’s why brewers like to describe super-hoppy IPAs the way that they might talk about marijuana: 'dank,' 'resinous,' 'sticky.'" (washingtonpost.com). 

Sweetwater feebly argued that but DANK TANK "requires imagination to determine what the goods actually will be, namely – such wording cannot be deemed merely descriptive and is, at most, suggestive of a beer or ale product that does not include cannabis." The Board pointed out, however, that descriptiveness is considered in the context of the goods, not in the abstract, and other meanings of the term "dank" in other contexts are irrelevant.

As to Sweetwater's argument that DARK TANK is a unitary mark, the Board observed that "[a] unitary mark has certain observable characteristics. Specifically, its elements are inseparable. In a unitary mark, these observable characteristics must combine to show that the mark has a distinct meaning of its own independent of the meaning of its constituent elements." In other words, "the whole [must be] something more than the sum of its parts."

However, in the absence of legal argument or evidence showing that its mark is unitary, we find that prospective purchasers seeing Applicant’s mark DANK TANK knowing that “dank” is descriptive of ale and beer, and “TANK” is defined as “1: a usually large receptacle for holding, transporting, or storing liquids (such as water or fuel)” would readily understand it to be comprised of the two separate terms “dank” and “tank.” While the two terms in Applicant’s proposed mark rhyme, the rhyming quality imparts no new or different meaning to “DANK TANK.”

As to the double entendre issue, again Sweetwater provided no legal argument or evidence, DANK, "retains its descriptive significance in relation to Applicant’s ale and beer. Therefore, “DANK” would be perceived by purchasers of Applicant’s ale and beer as signifying a quality, feature or characteristic of those goods resulting in no unitary meaning or double entendre imparted by DANK TANK."

And so the Board affirmed the disclaimer requirement.

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TTABlogger comment: It seems that breweries are getting more and more desperate to find brand names. DANK TANK is not one that would attract me to purchase the product. 

Text Copyright John L. Welch 2021.