TTAB Affirms Genericness Refusal of PICKLESHOT for .... Guess What?

This applicant found itself in a pickle after the USPTO refused to register the proposed mark PICKLESHOT for "alcoholic beverages, except beer," on the ground of genericness and, alternatively, mere descriptivenes (and lack of secondary meaning). Applicant took a shot at an appeal, but the Board's decision ended on a sour note: affirmed! In re The Original Pickle Shot, Inc., No. 88409422 (June 9, 2021) [not precedential] (Opinion by Judge David K. Heasley).

Genericness: Examining Attorney Andrew Leaser submitted a definition of "pickle shot" from the Urban Dictionary ("Double shot: one part vodka, one part pickle juice”), Internet articles showing common use of “pickle shot” for vodka or tequila combined with pickle juice as a mixed drink or a chaser, and an article about applicant's restaurant in Ocean City, Maryland restaurant, using the term "pickle shot" generically. Applicant had disclaimed PICKLE SHOT in a Supplemental Registration for the mark THE ORIGINAL PICKLE SHOT.

Applicant maintained that its identification of goods includes a wide variety of alcoholic beverages and PICKLESHOT is not generic for that genus of goods. It pointed out that the article about its restaurant did not include quotations from the owners using the term generically. As to the Supplemental Registration, applicant asserted that trademark rights are not static, and eligibility for registration should be determined on current facts.

Applicant pointed to a Wikipedia entry stating that "pickle shot" is "an alcoholic vodka spirit bottled by The Original Pickle Shot®." That entry was subsequently deleted. The Board agreed with the examining attorney that this Wikipedia entry should be ignored: "The sentences quoted above are redolent of self-interest, and were later removed. The Board is not obliged to accept unquestioningly such obvious assertions on the ultimate issue of whether Applicant’s proposed mark would be perceived as a mark."

The Board observed that PICKLESHOT "need not encompass all alcoholic beverages to be generic." It is enough that the term refers to part of the claimed genus of goods or services: for example, the term ‘pizzeria’ is generic for restaurant services even though it refers to a particular type of restaurant and not all restaurants. In re Cordua Rests., 118 USPQ2d at 1638 cited in Royal Crown v. Coca-Cola, 127 USPQ2d at 1046-47.

The evidence shows that the relevant public, adult purchasers of alcoholic beverages, would perceive PICKLESHOT as the name of a type of alcoholic beverage. The term has entered the lexicon with such frequency that it is defined in the Urban Dictionary—a source on which Applicant relies, as well.

And so, the Board affirmed the genericness refusal.

Mere Descriptiveness: Applicant feebly claimed that PICKLESHOT is a double entendre: "pickle" or "pickled" is a slang term for "drunk," and "PICKLESHOT conveys an impression of an intoxicating beverage, which can be consumed in a small serving size." The Board was not impressed:

[T]he record shows that “pickle shot” is commonly and invariably used to describe a drink combining pickle juice with a distilled spirit. There is no indication that consumers would readily dissect the term into its constituent words in order to reach a different interpretation. Moreover, the interpretation Applicant proffers is itself merely descriptive, as it immediately conveys knowledge of a characteristic of the goods: an intoxicating beverage that can be consumed in a small serving size. The term is thus not a “double entendre.”

The Board concluded that PICKLE SHOT is highly descriptive of the qualities, ingredients, and characteristics of applicant’s goods. That meant that applicant's burden to show acquired distinctiveness was commensurately high. 

Applicant's proofs under Section 2(f) were seriously inadequate. It offered no evidence of advertising expenditures, only two articles from regional publications, no survey results, and no third-party affidavits or declarations to support its claim. Moreover, its use use of the term had not been substantially exclusive, as required under Section 2(f), since the evidence showed frequent usage by third-parties. 

And so, the Board affirmed that alternative Section 2(e)(1) refusal.

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Text Copyright John L. Welch 2021.