The Examining Attorney submitted numerous excerpts from various websites, as well as results from a Google search, demonstrating use of “big six” in reference to wines. The Board noted that sometimes the list of six wines varies: e.g., Syrah is substituted for Merlot, Pinot Grigio is substituted for Sauvignon Blanc, and Zifandel is substituted for Riesling, but these variances did not change the Board’s analysis.
Applicant contended that the term BIG SIX refers to grape varietals used to make wine and is not as a generic designation for wine itself. The Board was unmoved. The evidence amply demonstrated that BIG SIX is used interchangeably to identify both the types of grapes and the types of wine produced by the grapes. “Indeed, it is common knowledge that when one orders a glass of wine, they generally do not ask for a glass of white wine comprising the chardonnay varietal grape; instead, they merely order a glass of chardonnay.”
In any case, even if the term BIG SIX referred to the grape used to make wine, it would still be generic for wine because “the generic name of an ingredient of the goods is incapable of identifying and distinguishing their source and is thus unregistrable on either the Principal or Supplemental Register.” See Cordua,118 USPQ2d at 1637-38 (affirming the Trademark Trial and Appeal Board’s holding of CHURRASCOS (a type of grilled meat) generic for restaurant services)).
Applicant contended that because the designation BIG SIX is not found in the dictionary or in wine glossaries, it cannot be generic for wines. Not so, said the Board. There is no such requirement for a finding of genericness.
Finally, Applicant’s search results purporting to show BIG SIX as a source indicator were not very probative. The Google search results were too truncated to provide proper context. Moreover, there was no indication whether the websites were still operative, nor any evidence regarding the number of consumer views. Some of the truncated results supported the genericness refusal because they appeared to show use of the designation BIG SIX generically for wines or the grape varietals that are the ingredients for wine.
Viewing the entirety of the evidence, the Board found that consumers “would understand the designation BIG SIX primarily to refer to ‘wines’ or a key aspect, type or ingredient of ‘wines.'”
As the the alternative refusal under Section 2(e)(1), the Board had no doubt that BIG SIX is merely descriptive of Applicant’s wines because it “clearly describes a feature or characteristic of Applicant’s wines, namely, the category of wines offered for sale or the types of varietal grapes used to produce Applicant’s wines.”
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TTABlog comment: Generic? I’m not so sure. The “refer to ‘wines'” language is rather broad. You may remember that Professor McCarthy criticized this “refer to” approach to genericness in this TTABlog post from last year. Merely descriptive, yes. But generic?
BTW: Applicant’s request, in the alternative, to amend its application to seek registration on the Supplemental Register was denied as moot in light of the finding of genericness.
Text Copyright John L. Welch 2019.