To: | Detroit Rivertown Brewing Company, LLC (dan.christopherson@bevlaw.com) |
Subject: | U.S. TRADEMARK APPLICATION NO. 88271942 - N.A. I.P.A. - TM1087 |
Sent: | 4/2/2019 6:20:18 PM |
Sent As: | ECOM117@USPTO.GOV |
Attachments: | Attachment - 1 Attachment - 2 Attachment - 3 Attachment - 4 Attachment - 5 Attachment - 6 Attachment - 7 Attachment - 8 Attachment - 9 Attachment - 10 Attachment - 11 |
UNITED STATES PATENT AND TRADEMARK OFFICE (USPTO)
OFFICE ACTION (OFFICIAL LETTER) ABOUT APPLICANT’S TRADEMARK APPLICATION
U.S. APPLICATION SERIAL NO. 88271942
MARK: N.A. I.P.A.
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CORRESPONDENT ADDRESS: |
CLICK HERE TO RESPOND TO THIS LETTER: http://www.gov.uspto.report/trademarks/teas/response_forms.jsp
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APPLICANT: Detroit Rivertown Brewing Company, LLC
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CORRESPONDENT’S REFERENCE/DOCKET NO: CORRESPONDENT E-MAIL ADDRESS: |
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OFFICE ACTION
TO AVOID ABANDONMENT OF APPLICANT’S TRADEMARK APPLICATION, THE USPTO MUST RECEIVE APPLICANT’S COMPLETE RESPONSE TO THIS LETTER WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE BELOW. A RESPONSE TRANSMITTED THROUGH THE TRADEMARK ELECTRONIC APPLICATION SYSTEM (TEAS) MUST BE RECEIVED BEFORE MIDNIGHT EASTERN TIME OF THE LAST DAY OF THE RESPONSE PERIOD.
ISSUE/MAILING DATE: 4/2/2019
· Section 2(e)(1) Refusal – Merely Descriptive
· Prior-Filed Application
SECTION 2(e)(1) REFUSAL – MERELY DESCRIPTIVE
Applicant has applied for the mark “N.A. I.P.A.” for “Beer; Non-alcoholic beer; Non-alcoholic malt beverages” in International Class 32.
In the application, applicant has provided a statement indicating that the term “N.A.” is a term of art in the relevant trade or industry, meaning “non-alcoholic”. [See attached evidence]. Additionally, beer brands and online magazine articles about beer use the designation to discuss non-alcoholic beverages. The attached evidence from WellBeing Brewing Company and Genesee Brewing Company show non-alcoholic beer products offered for sale with “N.A.” in the name. [See attached evidence]. An Esquire.com article discusses the evolution of “non-alcoholic (NA)” beer from substandard beverages to viable replacement options. [See attached evidence]. Applicant’s identification of goods includes “non-alcoholic beer” and “non-alcoholic malt beverages”. Therefore, the term “N.A.” as used in the applied-for mark is merely descriptive of the non-alcoholic nature of the applied-for goods.
“I.P.A.” is a popular style of beer. RateBeer.com explains that “IPA” stands for “India Pale Ale … has an intense hop flavor, a golden to copper color, and a medium malty body.” [See attached evidence]. Wikipedia article titled “India pale ale” and an article on TheDailyMeal.com similarly describes “IPA” as “an initialism for India Pale Ale, a hoppy style of beer within the pale ale category.” [See attached evidence]. Southern Tier Distilling provides a historical background of IPAs, discussing how the British soldiers in India created this style of beer by adding “generous amounts of hops” to “better survive the voyage”. [See attached evidence]. Applicant’s goods include “beer” and “non-alcoholic beer”. Therefore, the term “I.P.A.” as used in the applied-for mark is merely descriptive of a style of the applied-for goods.
The application states that the mark is a play off a popular style of beer called an “N.E. I.P.A.”, or a “northeast India pale ale”. [See attached evidence]. Therefore, applicant asserts, the turn of phrase creates a unitary mark. A “double entendre” is an expression that has a double connotation or significance as applied to the goods and/or services. TMEP §1213.05(c); see In re Colonial Stores Inc., 394 F.2d 549, 552-53, 157 USPQ 382, 384-85 (C.C.P.A. 1968) (finding SUGAR & SPICE a double entendre and not descriptive for bakery products because it evokes the nursery rhyme “sugar and spice and everything nice”). A mark that comprises a “double entendre” will not be refused registration as merely descriptive if one of its meanings is not merely descriptive in relation to the goods and/or services. TMEP §1213.05(c).
However, the multiple meanings that make an expression a “double entendre” must be well-recognized by the public and readily apparent from the mark itself. See In re Calphalon Corp., 122 USPQ2d 1153, 1163-64 (TTAB 2017) (quoting TMEP §1213.05(c)) (finding SHARPIN not a double entendre in relation to cutlery knife blocks with built-in sharpeners and affirming descriptiveness refusal); In re Brown-Forman Corp., 81 USPQ2d 1284, 1287 (TTAB 2006) (finding GALA ROUGE not a double entendre in relation to wines and affirming disclaimer of ROUGE); In re The Place, Inc., 76 USPQ2d 1467, 1470-71 (TTAB 2005) (finding THE GREATEST BAR not a double entendre in relation to restaurant and bar services and affirming descriptiveness refusal). Here, it is not readily apparent that “N.A. I.P.A.” is a double entendre when applied to the goods. It is likely a consumer would associate the wording “N.A. I.P.A.” with a non-alcoholic beer made in the India pale ale style.
Applicant should note the following additional ground for refusal.
PRIOR-FILED APPLICATION
The filing date of pending U.S. Application Serial No. 87656150 “IPNA CRAFTED NON-ALCOHOLIC IPA” precedes applicant’s filing date. See attached referenced application. If the mark in the referenced application registers, applicant’s mark may be refused registration under Trademark Act Section 2(d) because of a likelihood of confusion between the two marks. See 15 U.S.C. §1052(d); 37 C.F.R. §2.83; TMEP §§1208 et seq. Therefore, upon receipt of applicant’s response to this Office action, action on this application may be suspended pending final disposition of the earlier-filed referenced application.
In response to this Office action, applicant may present arguments in support of registration by addressing the issue of the potential conflict between applicant’s mark and the mark in the referenced application. Applicant’s election not to submit arguments at this time in no way limits applicant’s right to address this issue later if a refusal under Section 2(d) issues.
An applicant may check the status of or view documents filed in an application or registration using the Trademark Status and Document Retrieval (TSDR) system. Enter the application serial number or registration number and click on “Status” or “Documents.”
Please call or email the assigned trademark examining attorney with questions about this Office action. Although the trademark examining attorney cannot provide legal advice or statements about applicant’s rights, the trademark examining attorney can provide applicant with additional explanation about the refusal(s) and/or requirement(s) in this Office action. See TMEP §§705.02, 709.06. Although the USPTO does not accept emails as responses to Office actions, emails can be used for informal communications and will be included in the application record. See 37 C.F.R. §§2.62(c), 2.191; TMEP §§304.01-.02, 709.04-.05.
To expedite prosecution of the application, applicant is encouraged to file its response to this Office action online via the Trademark Electronic Application System (TEAS), which is available at http://www.gov.uspto.report/trademarks/teas/index.jsp. If applicant has technical questions about the TEAS response to Office action form, applicant can review the electronic filing tips available online at http://www.gov.uspto.report/trademarks/teas/e_filing_tips.jsp and e-mail technical questions to TEAS@uspto.gov.
TEAS PLUS OR TEAS REDUCED FEE (TEAS RF) APPLICANTS – TO MAINTAIN LOWER FEE, ADDITIONAL REQUIREMENTS MUST BE MET, INCLUDING SUBMITTING DOCUMENTS ONLINE: Applicants who filed their application online using the lower-fee TEAS Plus or TEAS RF application form must (1) file certain documents online using TEAS, including responses to Office actions (see TMEP §§819.02(b), 820.02(b) for a complete list of these documents); (2) maintain a valid e-mail correspondence address; and (3) agree to receive correspondence from the USPTO by e-mail throughout the prosecution of the application. See 37 C.F.R. §§2.22(b), 2.23(b); TMEP §§819, 820. TEAS Plus or TEAS RF applicants who do not meet these requirements must submit an additional processing fee of $125 per class of goods and/or services. 37 C.F.R. §§2.6(a)(1)(v), 2.22(c), 2.23(c); TMEP §§819.04, 820.04. However, in certain situations, TEAS Plus or TEAS RF applicants may respond to an Office action by authorizing an examiner’s amendment by telephone or e-mail without incurring this additional fee.
/Alexandra Foster/
Trademark Examining Attorney
Law Office 117
Phone: (571) 272-5111
alexandra.foster1@uspto.gov
TO RESPOND TO THIS LETTER: Go to http://www.gov.uspto.report/trademarks/teas/response_forms.jsp. Please wait 48-72 hours from the issue/mailing date before using the Trademark Electronic Application System (TEAS), to allow for necessary system updates of the application. For technical assistance with online forms, e-mail TEAS@uspto.gov. For questions about the Office action itself, please contact the assigned trademark examining attorney. E-mail communications will not be accepted as responses to Office actions; therefore, do not respond to this Office action by e-mail.
All informal e-mail communications relevant to this application will be placed in the official application record.
WHO MUST SIGN THE RESPONSE: It must be personally signed by an individual applicant or someone with legal authority to bind an applicant (i.e., a corporate officer, a general partner, all joint applicants). If an applicant is represented by an attorney, the attorney must sign the response.
PERIODICALLY CHECK THE STATUS OF THE APPLICATION: To ensure that applicant does not miss crucial deadlines or official notices, check the status of the application every three to four months using the Trademark Status and Document Retrieval (TSDR) system at http://tsdr.gov.uspto.report/. Please keep a copy of the TSDR status screen. If the status shows no change for more than six months, contact the Trademark Assistance Center by e-mail at TrademarkAssistanceCenter@uspto.gov or call 1-800-786-9199. For more information on checking status, see http://www.gov.uspto.report/trademarks/process/status/.
TO UPDATE CORRESPONDENCE/E-MAIL ADDRESS: Use the TEAS form at http://www.gov.uspto.report/trademarks/teas/correspondence.jsp.