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TTAB Finds: Failure To Function As A Trademark And Merely Descriptive

In this recent Trademark Trial and Appeal Board decision, In re Fowles Wine Pty Ltd., Serial No. 79157017 (September 15, 2017) [not precedential], the Board affirmed the refusal of the Examining Attorney. The interesting aspect to this decision is one of the grounds for refusal was failure to function as a trademark (the other ground was the mark was merely descriptive of the goods). The Applicant was seeking to register the mark FARM TO TABLE for wines in standard characters. After the refusal was made final, the Applicant appealed to the Board.

To support the refusal, the Examining Attorney submitted printouts from numerous commercial websites, illustrating how third parties in the industry use the term “Farm to Table”. These web pages included excerpts and references such as: (1) “Farm to Table Wine Dinners…”; (2) “Farm to Table Wine and Cooking Adventure”; (3) “Farm to Table Wines…”; (4) “Freas Farm Winery is focused on serving high quality farm to table wines”; (5) “Farm to Table Wine Tasting featuring local farmers and organic wines from Bonterra Vineyards…”; and (6) “Farm to Table Wine and Food”. In addition, the Examining Attorney introduced into evidence articles from major newspapers discussing the phase, Farm to Table in connection with wine.

In an attempt to counter this evidence, the Applicant submitted third-party registrations for FARM TO TABLE formative marks for food products and related services. The Board held that the multiple third-party registrations were of little probative value because the printouts did not show if such registrations were allowed to register under a claim of acquired distinctiveness under Section 2(f) of the Trademark Act. In addition, the printouts did not show if the registrations required a disclaimer or if the registrations registered on the Supplemental Register.

Under sections 1, 2, & 45 of the Lanham Act (the Trademark Act) there is a statutory basis for refusal to register a term if the term fails to function as a trademark. This means that the mark must be able to identify the source of the goods and distinguish the goods from those manufactured or sold by others in order to register. To determine if a designation functions as a trademark, the inquiry must focus on how the relevant public will perceive the mark. To come to this conclusion, a specimen for the mark and other evidence of use will be reviewed.

Here, the evidence of record indicates that the term Farm to Table is used as a statement or slogan by third parties in the industry. The third party use indicates that wines and foods are grown locally and produced locally as a trend in the industry. In fact, the term is used in an informational manner to inform patrons and consumers that locally sourced foods and wines will be served together. More importantly, this evidence shows that consumers are accustomed to seeing the term Farm to Table used by multiple sources and would not view the term Farm to Table to indicate one source. Yet the objective of a trademark is to identify a single source. Since so many third parties use the term Farm to Table to indicate that foods and wines are locally produced and grown, the Applicant cannot be granted exclusive rights to the term (thereby preventing others from using it). Since the nature of the phrase is informational, it cannot identify a single commercial source. The Board affirmed the refusal on this ground.

The Board also affirmed the refusal on the ground that the mark when used in conjunction with wine is merely descriptive of the goods. The Board determined that the term Farm to Table immediately conveys  that the wine is locally sourced. The mark Farm to Table describes a feature or characteristic of the wine and thus the refusal to register on the Principal Register was affirmed. See our web page entitled, Disadvantages Of Descriptive Trademarks, to understand why descriptive marks should be avoided. In re Fowles Wine Pty Ltd., is another example of an applicant choosing to adopt a descriptive mark and not succeeding in registration of the mark. If you have questions pertaining to trademarks, please do not hesitate to contact our office for a courtesy consultation.