Precedential No. 29: TTAB Affirms Refusal of "DRINK MORE BEER" For Bottle Caps: Not Used as a Source Indicator

To be registrable, a proposed trademark must function as a source indicator in the eyes of relevant consumers. Applicant Maugus Manufacturing tripped over that hurdle when it applied to register DRINK MORE BEER for "non-metal and non-paper closures for containers." The Board agreed with Examining Attorney Tejbir Singh that the proposed mark, as presented on Maugus's specimens of use, would not be perceived as identifying source, but rather would be seen as an example of how wording may appear on the products that consumers purchase. In re Maugus Manufacturing, Inc., 2021 USPQ2d 1100 (TTAB 2021) [precedential] (Opinion by Judge Cindy B. Greenbaum).

In determining whether a proposed mark functions as a source indicator, the Board (not surprisingly) reviews the specimens and other evidence of record. In re Hulting, 107 USPQ2d 1175, 1177 (TTAB 2013)

Whether matter applied for as a trademark functions as a trademark depends on how it would be perceived by the relevant public, here a brewery owner, manager, or other employee who is responsible for ordering the goods, as is evident from the specimens, and also members of the general public associated with home brewing (e.g., home brew supply shops, home brewers). In re Eagle Crest, Inc., 96 USPQ2d 1227, 1229 (TTAB 2010); In re Aerospace Optics, Inc., 78 USPQ2d 1861, 1862 (TTAB 2006).

Applicant's specimens of use showed that it uses the trademark “NNBC” to identify and distinguish the source of its closures [See applicant's website - ed.]; DRINK MORE BEER "merely identifies optional wording that may appear on one of the products, or one of the available styles for the product sold, under the NNBC mark." The Board found its decision in In re J. Hungerford Smith Co., 279 F.2d 694, 126 USPQ 372 (CCPA 1960), to be instructive. There, the applicant used "JHS" or “J. Hungerford Smith” to identify the source of its soft drink syrup; the proposed mark "Burgundy" appeared only as a flavor designation and not as a trademark.

The Board concluded that purchasers would view the proposed mark "as an example of how their own marks might look on Applicant’s growler caps. They would not associate the wording DRINK MORE BEER stamped or embossed on the growler cap as a source identifier of the 'non-metal and non-paper closures for containers' identified in the application."

And so, the Board affirmed the refusal to register.

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TTABlogger comment: Suppose an acceptable specimen of use had been submitted. Is DRINK MORE BEER too common a phrase to serve as a trademark?

Text Copyright John L. Welch 2021.