Attorney Argument Isn't Evidence: CAFC Affirms TTAB's "PARMA COFFEE" Decision

The CAFC gave this applicant the boot in its appeal from the TTAB's decision [TTABlogged here] affirming a Section 2(e)(2) geographical descriptiveness refusal of PARMA COFFEE for, inter alia, coffee and chocolate. Because Parma is a well-known geographic location, and because Applicant Zeta's goods were admittedly "developed" in Parma, Italy, the Board presumed "that there is a goods/place association amongst the consuming public." The CAFC found that substantial evidence supported the Board's decision. In Re A. ZETA S.R.L, 2022 USPQ2d 544 (Fed. Cir. 2022) [not precedential].

On this appeal, Zeta argued that its goods do not "originate" in Parma, but the court concluded that because Zeta did not make this argument before the Board, it was waived. "Moreover if we were to consider this argument, the record lacks any evidence to support it; mere argument cannot suffice." [Emphasis supplied].

Finally, Zeta feebly argued that the USPTO has registered numerous other marks containing city names, and therefore to deny Zeta its registration would be inconsistent. The court noted that many of the third-party registrations were raised by Zeta for the first time on appeal. The few that were in the record had little probative value since each mark must be evaluated on the basis of the application at issue.

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TTABlogger comment: The statement that attorney argument is not evidence seems to be appearing more frequently in Board decisions. It is found in three decisions by the Board so far this month: the MULLET genericness reversal (TTABlogged here), and two Section 2(d) cases: the BLACK DIAMOND ex parte decision (here), and the HEADSTRONG opposition (here).

Text Copyright John L. Welch 2022.