Turning to the genericness issue, the Board as usual found the genus to be appropriately described by the identification of goods in the application, rejecting applicant’s proposed “plant-based chocolate.” Applicant feebly argued that the relevant consumers are English speakers in Midwest supermarkets (“from Pittsburgh to Fargo), but these restrictions did not appear in the application at issue.
As to consumer perception, the Board noted that in applicant’s specimen of use and other materials, there was no use of D’AVOCADO “or other indicia to suggest the purchasing public would perceive it as a common name for the goods rather than a mark.” Nothing in the USPTO’s evidence showed use of the term in connection with the identified goods.
The Board found the facts of this case to be “reminiscent” of several prior decisions in which a mark combining a generic term with a foreign article or other word changed the commercial impression of the phrase: LA YOGURT for yogurt, GLACÈ LITE for ice cream and frozen desserts, LE CASE for jewelry and gift boxes (CASE disclaimed).
The Board concluded that “the sparse and inconsistent record of any meaning of ‘d’avocado’ in a foreign language or English, as well as the very limited evidence of consumer perception of the term, does not point to the mark as a generic name of the class of goods.” The Board therefore reversed both the genericness refusal and the translation requirement.
Read comments and post your comment here.
TTABlogger comment: I find this case reminiscent of the generic ingredient/flavor cases.
Text Copyright John L. Welch 2020.