Thursday, August 26, 2021

TTABlog Test: Is FAST DRINK Merely Descriptive of Nutritional Meal Replacement Drinks?

The USPTO refused to register the proposed mark FAST DRINK, finding it to be merely descriptive of "Nutritional meal replacement drinks adapted for medical use; herbal teas for medical treatments." The Examining Attorney contended that FAST DRINK merely describes a significant feature of the identified goods, namely, that the goods are "for use during periods when a consumer either completely abstains from food, instead consuming herbal teas or meal replacement drinks such as those described in applicant’s application or when a consumer greatly reduces the food for a certain period, instead consuming herbal teas or meal replacement drinks[.]" How do you think this appeal came out? In re L-Nutra, Inc., Serial No. 87635652 (August 24, 2021) [not precedential] (Opinion by Judge Cindy B. Greenbaum).

The Examining Attorney relied on dictionary definitions of the constituent words and on articles, blog posts, and L-Nutra's own advertising materials indicating that its products are used to provide nourishment to someone who is fasting or preparing to fast. 

The Board, however, noted the lack of evidence that FAST DRINK as a unitary term is used to refer to such a drink. This suggests that FAST DRINK "is not a grammatically correct expression or term of art identifying a type of drink used during a fast, and it is unclear whether consumers would understand it as a merely descriptive term when applied to the identified goods." 

Moreover, said the Board, "we believe consumers would perceive FAST DRINK as referring to a product they can prepare quickly or they can use as a quick snack or as on on-the-go meal replacement." The Board observed that marks that creates a double entendre are not merely descripitive. Here, FAST DRINK has multiple meanings and qualifies as a double entendre. 

And so, the Board therefore reversed the refusal to register.

Read comments and post your comment here.

TTABlogger comment: I'm not convinced. FAST DRINK in the context of a drink for fasting people would seem to be readily perceived as describing the key purpose of the drink . Moreover, even if it has a second meaning, that meaning is also merely descriptive of the goods. So I dissent.

Text Copyright John L. Welch 2021.


At 7:49 AM, Anonymous Anonymous said...

They pulled a fast one. I always thought the rule was no double-entendre if one of the meanings is merely descriptive. How are we supposed to make decisions as trademark lawyers when faced with this. I need a fast drink (maybe some sloe gin)

At 11:00 AM, Blogger Eddie said...

Board was right. Fast is not fasting.

At 2:51 PM, Blogger Miriam Richter, Esq. said...

I think the mark is also an oxymoron - when I fast I don't drink anything! I would have allowed it on that ground alone! (Think Icy Hot!)

At 4:55 PM, Anonymous Anonymous said...

Shouldn't descriptiveness be decided based on the claimed G&S?

"Nutritional meal replacement drinks adapted for medical use; herbal teas for medical treatments"

Nothing about being a drink for fasting people.


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