[This guest post was written by Kira-Khanh McCarthy, a law clerk (soon-to-be associate) in the Trademark Group at Wolf, Greenfield & Sacks, P.C.] In a nonprecedential opinion, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) affirmed the TTAB’s September 26, 2019 decision (here) finding Appellant’s mark BREW SCIENCE to be merely descriptive of “Entertainment services, namely, on-line non-downloadable videos, in the field of beer, beer accessories and the beer industry; provision of entertainment, namely, on-line non-downloadable videos concerning beer, beer accessories and the beer industry.” Applicant Christopher Coles challenged the Board’s findings, contending its decision lacked substantial support. The CAFC disagreed and held that the Board’s reliance on multiple dictionary definitions, numerous online sources, and even Appellant’s own website, all amounted to substantial evidence which supported the ultimate refusal to register. In re Christopher Coles, 2020 USPQ2d 483064 (Fed. Cir. 2020) [not precedential].

The Board’s determination that a mark is merely descriptive under Section 2(e)(1) of the Trademark Act is a factual finding which the CAFC reviews for substantial evidentiary support. “Substantial evidence ‘means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” In re Bayer AG, 488 F.3d 960, 964 (Fed. Cir. 2007) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Here, the CAFC ruled that substantial evidence supported the Board’s findings that “brew” is a slang term for beer and that “science” refers generally to “a systematic method or body of knowledge in a given area.” It noted that the Board cited multiple dictionary definitions for both terms. From these definitions the Board found that it was reasonable that consumers would understand Appellant’s mark as describing “a body of knowledge about beer or brewing beer.” The fact that Appellant’s own website, which characterized the videos as containing “sciencey type stuff” (such as experimenting with different beer combinations), constituted further evidence of this understanding. Appellant Coles argued that “brew” could also refer to brewing tea and that “science” was used in a “playful” manner to describe the videos. But, the CAFC remained unconvinced.

The CAFC also ruled that substantial evidence supported the Board’s finding that the words “brew” and “science,” when combined, retain their descriptive significance, based on numerous online sources using the term “brew science.” Again, Appellant’s website did him no favors as it clearly described his videos as relating to the knowledge of beer.

Coles asserted that the USPTO has previously registered several marks containing the term “science” for entertainment services. However, the CAFC concluded that this evidence was “at best, probative and does not overcome the substantial evidence cited by the Board” and that such list of third-party registrations “establishes nothing of relevance to this case, as there is no basis for [the court] to assume that the cited marks are themselves inherently distinctive.”

In sum, given the extensive evidence cited by the TTAB, the CAFC held that the Board’s findings were supported by substantial evidence. And so, the Board’s decision upholding the examining attorney’s final refusal to register BREW SCIENCE was affirmed.

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TTABlogger comment: I’d call this a double-WYHA?

Text Copyright Kira-Khanh McCarthy 2020.