I don't drink a lot of beer - I want to keep my weight down. But I don't think I would ever want a glass of CINNAMON DONUT STOUT. The Board was not enamored with the idea, either. It affirmed a refusal to register, on the Supplemental Register, the term CINNAMON DONUT STOUT for "beer" [STOUT disclaimed], finding it to be generic for the goods under Sections 23(c) and 45. Examining Attorney Raul Cordova "proffered clear and convincing evidence that beer is offered in a variety of flavors that describe the central, or key, aspect of the beer." In re Blake Farms Hard Apple Cider, LLC, Serial No. 90504414 (May 16, 2024) [not precedential] (Opinion by Judge Melanye K. Johnson).
Not surprisingly, the Board found the genus of the goods to be "beer" and the relevant purchasers to be "ordinary adult members of the public who are beer drinkers." As to the meaning of the proposed mark, applicant's specimen of use states: "Made with Blake’s Cider Mill famous donuts & locally sourced cold brew coffee, this stout has notes of rich chocolate, vanilla and cinnamon."
The Examining Attorney submitted third-party website evidence that included the terms "cinnamon donut" in the name of a beer. Based on that evidence, the Board found that "flavored beer is a type of beer within the genus “beer” defined by Applicant’s identification of goods."
When a term “directly names the most important or central aspect or purpose of [an] applicant’s goods” and would be understood by the relevant consumers as referring to a category of those goods, the term is generic. In re Cent. Sprinkler Co., 49 USPQ2d 1194, 1199 (TTAB 1998) [ATTIC for sprinklers]. *** Here, flavor, including flavors resulting in beer tasting like another food or beverage, is an important and central aspect for beer. Specifically, the flavor “cinnamon donut” refers to a key, or central, aspect of Applicant’s Goods as well as the goods of several third parties.
The Board further noted that an adjective may serve as a generic term. See Sheetz of Del., Inc. v. Doctor’s Assocs. Inc., 108 USPQ2d 1341, 1366 (TTAB 2013) [FOOTLONG for sandwiches]. "The primary significance of 'cinnamon donut' is as a generic adjective for cinnamon donut beer, and the fact that CINNAMON DONUT STOUT is not the common name of one type of beer does not mean that the term is registrable."
Here, the term “cinnamon donut” immediately describes the most important or central aspect of Applicant’s Goods — the “cinnamon donut” flavor. Thus, “cinnamon donut” is a term that identifies a category of beer.
The Board concluded that the Examining Attorney met the USPTO's burden of proving genericness by "clear and convincing evidence." In re Cordua Rests., 118 USPQ2d at 1635. And so, the Board affirmed the refusal to register.
Read comments and post your comment here.
TTABlogger comment: WYHA? Perhaps you would prefer a Blueberry Muffin? Note that last year, in Uman Diagnostics, a precedential decision, the Board ruled that the standard for proof of genericness is a "preponderance of the evidence." See Michael Hall's article here. Here the Board said the standard is "clear and convincing." What gives?
Text Copyright John L. Welch 2024.
"Generic adjective"? I was raised on "merely descriptive" and "generic" terms.
ReplyDeleteI agree with the result, but not so much the Board creating for me, at least, a new category of adjectives.
I'll take a Blueberry Muffin any day.
It is painfully obvious that the mark is not entirely generic. This is right up there next to the BLUEBERRY MUFFIN decision.
ReplyDeleteIn my opinion, you can see the TTAB's misapplication of the law right there in the quoted section from the blog post:
When a term “directly names the most important or central aspect or purpose of [an] applicant’s goods”...the term is generic. In re Cent. Sprinkler Co., 49 USPQ2d 1194, 1199 (TTAB 1998) [ATTIC for sprinklers].
In this case, it is apparent that the single most important or central aspect of the goods is not the flavor, but the fact that it is beer.
The TTAB even goes on to state that here the flavor is an important and central aspect for beer. They're not even applying the law correctly here. This is completely appealable.
I wish this was the kind of stuff that was getting appealed. I couldn't care less about the domicile requirement that he can publicly hide anyways...
I question Anonymous 3:05's logic. How can "beer" be the "single most important or central aspect" OF BEER? What makes CINNAMON DONUT STOUT generic is that the beer is brewed with cinnamon donuts, literally a cinnamon donut stout. CINNAMON DONUT does not just describe the flavor, it directly identifies the type of stout. This mark does not deserve anything less than a generic refusal.
ReplyDeleteI consider that the term CINNAMON DONUT STOUT was not being used as a trademark on the box. It identified the nature of the goods, especially as the word STOUT was part of the term. Used in relation to cinnamon donut flavoured stout the term is directly descriptive. In relation to other flavoured or non-flavoured stouts and other beers it is misdescriptive and misleading.
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