The USPTO issued a Section 2(e)(1) refusal of the mark ARTIZEN, in standard character and stylized form, finding it to be merely descriptive of essential oils and related products. On appeal, applicant argued that ARTIZEN has a double meaning, that consumers will see the play on the word “zen,” and therefore that the mark creates “a suggestive significance and separate and distinct commercial impression” such that any descriptive significance is lost. How do you think this came out? In re Choice Traders LLC, Serial Nos. 87770413 and 87950215 (March 31, 2020) [not precedential] (Opinion by Judge David K. Heasley).

The Board observed that essential oils are “essential” not because they are necessary, but because they carry the fragrance or “essence” of the plants from which they are extracted. The examining attorney maintained that because the extraction and distillation of these oils requires skilled handiwork by artisans, the oils are commonly described in the marketplace as “artisanal” or “artisan.” She submitted a number of Internet examples of use of the phrase “artisan essential oils.” The examining attorney further argued that applicant’s misspelling of “artisan” does not eliminate its descriptive nature.

Applicant maintained that its ARTIZEN mark is an inventive and incongruous play on words that projects more than one meaning. “While consumers may pronounce ‘ARTIZEN’ in a way that sounds similar to ‘ARTISAN’ they will also see the play on word (sic) with the addition of ‘ZEN’ instead of ‘SAN.'” ***  “Accordingly, the double meaning of the mark ARTIZEN as a whole creates a suggestive significance and separate and distinct commercial impression apart from the mark sounding similar to ‘ARTISAN’ such that any descriptive significance of the mark is lost.”

The Board observed that “a novel spelling does not overcome evidence of mere descriptiveness if purchasers would perceive the different spelling as the equivalent of the descriptive term.” The issue, then, was whether relevant purchaser “would tend to perceive ARTIZEN as simply a misspelling of ‘artisan,’ or as more than simply a misspelling, conveying a different, suggestive commercial impression.”

Finding this to be a close case, the Board sided with applicant.

The marks do not immediately describe any specific characteristic or feature of Applicant’s goods. Consumers are not likely to perceive ARTIZEN, as used in connection with Applicant’s goods, as just a misspelling, but rather as a play on words—suggesting that its essential oils, if used in aromatherapy or other uses, will evoke a zenlike feeling of calm relaxation.

The Board likened this case to the MufFuns (stylized) and THE FARMACY cases, each of which involved a play on words. “As with ‘THE FARMACY,’ Applicant’s marks are inventive and just clever enough, being an obvious play on “artisan” and “zen.” As with ‘MUFFUNS,’ Applicant’s marks suggest the zenlike calm and relaxation one can attain from its redolent essential oils.”

Conclusion: The Board therefore reversed the refusal to register

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TTABlog comment: Was the second meaning obvious to you? It wasn’t to me.

Text Copyright John L. Welch 2020.