United States Patent and Trademark Office (USPTO)
Office Action (Official Letter) About Applicant’s Trademark Application
REQUEST FOR RECONSIDERATION
AFTER FINAL ACTION
DENIED
Issue date: February 19, 2020
Accordingly, the Section 2(e)(1) descriptiveness refusal made final in the July 25, 2019 Office action is maintained and continued for the reasons set forth below. See TMEP §§715.03(a)(ii)(B), 715.04(a).
If applicant has already filed an appeal with the Trademark Trial and Appeal Board, the Board will be notified to resume the appeal. See TMEP §715.04(a).
If applicant has not filed an appeal and time remains in the six-month response period, applicant has the remainder of that time to (1) file another request for reconsideration that complies with and/or overcomes any outstanding final requirement(s) and/or refusal(s), and/or
(2) file a notice of appeal to the Board. TMEP §715.03(a)(ii)(B). Filing a
request for reconsideration does not stay or extend the time for filing an appeal. 37 C.F.R. §2.63(b)(3); see TMEP §715.03(c).
Section 2(e)(1) Descriptive Refusal-Continued and Maintained
Registration is refused because the applied-for mark merely describes a feature and/or characteristic of
applicant’s goods. Trademark Act Section 2(e)(1), 15 U.S.C. §1052(e)(1); see TMEP §§1209.01(b), 1209.03 et seq.
In the present case, the applicant has applied for the mark “TASTY” stylized for “Flavored liquors; spirits; wine; and pre-mixed non-beer based alcoholic beverages.”
The term “tasty” means “having a marked and appetizing flavor.” See attached definition from
Merriam-Webster Dictionary online. Accordingly, the wording “TASTY” in the applicant’s mark is descriptive in the context of the applicant’s goods because the
wording immediately conveys that the applicant’s goods are have a marked and appetizing flavors.
Moreover, attached are additional evidence supporting that the wording “tasty” descriptively in the context of drinks and
beverages as being good flavored.
- The web article describes a Japanese liquor called shochu as a “tasty liquor.” http://fabfitfun.com/magazine/what-is-shochu/
- The web excerpt provides recipes for making “tasty” drinks. http://advancedmixology.com/blogs/art-of-mixology/3-tasty-drinks-you-can-make-with-3-ingredients
- The web excerpt describing good flavored drinks as “tasty”. http://effortlessgent.com/ultimate-bar-cart/
- The excerpt from the attached states “What resulted was a tasty and natural addition to an already well-rounded vodka. Add some natural
vanilla beans to the process and Bob’s your uncle, you’ve got a tasty liquor treat. The flavors here are pretty straightforward. You’ve got honey and vanilla up front,
along with the spice, pepper and tang of a vodka, with a little wood finish on top.” http://www.drinkmemag.com/the-11-spirits-that-deserve-your-holiday-money
- The attached web excerpt states, “We produce a variety of tasty wine. Jump down to your favorite type of wine or browse through all of them.”
http://www.mastropietrowinery.com/our-wines/
- The excerpt explains “Sipping an easy drinking, tasty wine would be fun, but is it worth the hassle of opening an entire bottle, using wine
glasses and then disposing of the glass bottle? The Original House Wine, Pinot Noir, Chile (Luxury 77583; $5.49 for 375 ml.) has a dark ruby color offering elegant black cherry and spicy aromas. The
pure, dark fruit flavors balance with good acidity and soft tannins. A tasty red! Highly Recommended.” http://triblive.com/lifestyles/dave-desimone-columns/best-buys-from-the-wine-cellar-canned-wines-a-tasty-alternative/
- The excerpt writes “Here are five tasty wines from Wilibees under $20. Lucky Rock Wine Co., 2013 Sonoma County Pinot Noir, 13.5%, $16. A
tangy pinot with bright cherry fruit, crisp acidity and a lingering finish. A steal for the price. Gris Blanc, 2014 Pays D’OC, France Rosé, 12.5%, $13. A tasty rosé with
crisp acidity, refreshing fruit and bright minerality. Finishes dry. Lovely.” http://www.pressdemocrat.com/lifestyle/5730213-181/five-tasty-wine-picks-from?sba=AAS
- “My favorite of their wines is the white, called Regaleali Bianco ($15). This crispy, tasty wine is a blend of Inzolia (47%), Grecanico
(22%), Catarratto (25%), and Chardonnay (6%). http://www.austinchronicle.com/daily/food/2019-07-27/weekend-wine-sicilian-white-wine/
- “San Felipe 12 Uvas Red, White or Rose (Argentina). This wonderful and tasty wine is made with 12 different grapes, is intensive well blanced
and médium bodied. 25 Queirolo Red Borgona or Semi Sweet (Peru) Tasty and sweet, light bodied, a médium sweet wine that reflects the friendly and casual carácter of South
American ature. 22” http://www.elgauchoinca.com/wine-list
- “We use old world methods to handcraft unique vineyard designated wines. What can be described as minimalistic in the winery, we attempt to make tasty wine that makes good food taste better consumed together. Our flavorful wines are designed to be part of a meal and complement food, whether it’s a casual meal at home or a
dinner at a top restaurant.” http://www.yorkvillecellars.com/About-Us/Our-Team
- “Depot Dark (12% ABV) Pinot Noir/Cabernet oaked blend producing a surprisingly tasty wine that goes well
with most hearty dishes.” http://toastedgoatwinery.com/our-wines/
- “While this hybrid grape is relatively new to its midwestern habitat, Traminette is quickly becoming everyone’s favorite. This tasty wine is
loaded with fruity scents and crawling with pear, green apple, and citrus flavors. It is handcrafted from grapes grown in our certified sustainable vineyard.” http://jowlercreek.com/semi-sweet-wines
Additionally, the TTAB has previously found the term “tasty” to be merely descriptive of food. See In re Geo. A. Hormel & Co., 227 USPQ 813 (TTAB 1985). The TTAB stated: “A term is considered to be merely descriptive of a
product if it immediately conveys to purchasers information as to the ingredients, quality, characteristics, functions or other features of the product in connection with which the mark is used. In
re Bright-Crest Ltd., 204 USPQ 591 (TTAB 1979). Clearly the term “tasty” would be merely descriptive of sausage under this test. The record shows “tasty, savoury; delicious.” Id.
In its response, the applicant argues that dozens of “TASTY” marks in Classes 29, 30, 31, and 32 on the Principal Register, without a disclaimer, 2(f)
claims, or placement on the Supplemental Register. The third party registrations referenced by the applicant are different from the applicant’s mark in
that those marks contain other wording that makes the marks unitary or the mark is combined with another non-descriptive wording so that a disclaimer is not necessary. See TMEP §§1213.05, 1213.08(b).
When determining whether an applied-for mark is eligible for registration, each application
must be considered on its own record. In re Cordua Rests., Inc., 823 F.3d 594, 600, 118 USPQ2d 1632, 1635 (Fed. Cir. 2016) (“[The Federal Circuit], like the
Board, must evaluate the evidence in the present record to determine whether there is sufficient evidence . . . .”); In re Shinnecock Smoke Shop, 571 F.3d 1171, 1174, 91 USPQ2d
1218, 1221 (Fed. Cir. 2009) (“Applicant’s allegations regarding similar marks are irrelevant because each application must be considered on its own merits.”); see also In re Nett Designs,
Inc., 236 F.3d 1339, 1342, 57 USPQ2d 1564, 1566 (Fed. Cir. 2001) (“Even if some prior registrations had some characteristics similar to Nett Designs’ application, the PTO’s allowance of such
prior registrations does not bind the [Trademark Trial and Appeal] Board or this court.”).
Accordingly, as the evidence of record clearly establishes that the proposed mark “TASTY” is merely descriptive in the context of the applicant’s goods, the Section 2(e)(1)
descriptiveness refusal is continued and maintained.
/Jenny Park/
Examining Attorney
Law Office 104
571-272-8857
jenny.park@uspto.gov
