The USPTO refused registration of the mark OXZGEN for “[n]on-metal dosing caps for bottles; non-metal dispensing caps for containers,” on the ground that applicant’s specimens of use (below) failed to show the mark in use with the identified goods. Applicant appealed, arguing that the specimens show “normal packaging” for its goods, that such is the normal “mode of use,” and that the mark on the container “functions as a label or tag since it would be impractical to put the mark on the actual dispensing cap.” How do you think this came out? In re Wholesale & Retail Distribution, Inc. Serial No. 86586432 (May 30, 2018) [not precedential] (Opinion by Judge Angela Lykos).

The Board recognized that when it is impracticable to place the mark on the goods, the packaging for the goods, or associated displays, the USPTO may accept another document related to the goods or their sale. The TMEP provides several examples of situations of such “impracticability”: natural gas, grain sold in bulk, or chemicals sold only in tanker cars.

Applicant’s goods, the Board observed, “are in no way analogous” to natural gas, grain sold in bulk, or chemicals sold in tanker cars. The Board agreed with Examining Attorney Toby E. Bulloff that the mark OXZGEN is used as a trademark for beverages (which goods applicant had deleted from the application),  not for the identified goods.

The dosing and dispensing caps are an integral component of the bottles in which the beverages are sold, and as Applicant has confirmed, the caps are not sold separately. In other words, consumers are purchasing Applicant’s beverages, not the dispensing and dosing caps.

And so the Board affirmed the refusal.