Ren Acquisition, Inc. (“Applicant”) sought registration on the Principal Register of the marks BLENDS and BLENDS, INC in standard characters for the marketing, advertising, and promotion of the sale of wine in International Class 35. In re Ren Acquisition, Inc., Serial Nos. 85787527 and 85787531 (October 3, 2014). Applicant disclaimed the use of the term, “Inc.” in its application for BLENDS, INC. The Examining Attorney refused to register either mark under Section 2(e)(1) of the Trademark Act of 1945, 15 U.S.C. § 1052(e)(1) on the grounds that both BLENDS and BLENDS, INC. were merely descriptive of marketing, advertising, and promoting the sale of wine since the term “Blends” refers to a wine composed to two or more grape varieties. Id. at 2. Therefore, the Attorney reasoned, the mark BLENDS was merely descriptive of the product being marketed, advertised, and promoted. Id.
Applicant appealed and requested reconsideration of a previously refused trademark application. After the Examining Attorney denied the request for reconsideration, the appeal resumed. The Board affirmed the decision of the Examining Attorney and refused registration of the mark.
On appeal, the Board noted that the question was not whether an individual presented only with the mark “could guess the services listed in the identification of services.” Id. Instead, the question was whether an individual who knows what the services are will understand the mark to convey information about the services. Id. at 3. As such, the Board determined how relevant customers for wine marketing, advertising, and promoting would perceive the term “Blends.”
In determining whether a mark is merely descriptive, it is enough that the term describes one significant function, attribute, or property of a service in order for the term to be considered merely descriptive. As the Board noted in its opinion, “it is not necessary that a term describe all of the purposes, functions, characteristics, or features of a service to be considered merely descriptive.” Id. If the mark is descriptive of even just one identified item, the whole class of goods may be refused registration.
Applicant argued that the term, “Blends” was not descriptive of marketing, selling, and promoting wines. Specifically:
Simply, the Examiner has confused “services” and “goods.” Applicant’s subject application is neither requesting a mark specifically for wine nor is the mark for retail services selling wine. Each and every piece of evidence offered by the Examiner is specifically for wine or the retail sale of wine by either a winery or a retail store selling wine. . . . The significant function, purpose, feature, and/or characteristic of the mark is to “market, advertise, and promote.” Marketing, advertising, and promoting the “sale” of wine is considerably different than the act of selling wine or producing wine. Id. at 4.
The evidence submitted in support of the descriptive nature of “Blends” with respect to wine included: (1) Wine Enthusiast Magazine Glossary of Wine Terms; (2) Overview of wine blends, vintage wine blends, and nonvintage wine blends from Lovetoknow Wine website; (3) An article from Huffington Post Taste; (4) An advertisement from winetasting.com for “Red Wine Blends;” (5) examples of wine labels containing the term “Blend;” and (6) many others.
Applicant argued that when the term, “Blends” is used in connection with marketing, advertising, or promoting, the term can refer to many things—not just wine. Irrespective, the Board responded that whether a term is merely descriptive is not considered in the abstract, but instead in relation to the services at issue (i.e., as here, the marketing, advertising, and promoting of wine). Id. at 9. Additionally, the Board noted that the fact the term “Blends” may have different meanings in different contexts is not controlling. Id. at 10.
The Board found that the term, “Blends” described the product which Applicant markets, advertises, or promotes. As such, the Board determined the term should “remain available to any company rendering these services.” Id. at 9.
While this seems to be another fair and, perhaps, obvious decision on behalf of the Board, it is an important one nonetheless. Many wine labels contain the term “Blend,” “Blends,” “Blending,” or similar. In fact, after a cursory search of the LabelVision database, I discovered over 26,000 wine labels containing the term “Blend” since the early 1990s. Well over 34,000 wine labels contain the term “Blend,” “Blends,” or “Blending.” This is quite notable, and is further indication that “Blends” is merely descriptive for International Class 35. If the Board (or the Examining Attorney) granted registration for the mark, one can only imagine how troublesome this could be for the wine industry.
DISCLAIMER: This blog post is not intended as legal advice, and no attorney-client relationship results. Please consult your own attorney for legal advice.