The USPTO refused registration of the term ROSE on the Supplemental Register, for "beer based mixed beverages," on the ground that the term is generic for the goods. Applicant contended the term "rose" does not identify a category of beers, but rather merely describes "one of several characteristics of certain beer beverages that have a pinkish color." How do you think this came out? In re ABK Betriebsgesellschaft der Aktienbrauerei Kaufbeuren GmbH, Serial No. 86937069 (July 7, 2017) [not precedential] (Opinion by Judge David K. Heasley).
The Board found the genus of goods to be adequately described by applicant's identification of goods. The relevant consumers are "ordinary beer drinkers and other adult purchasers of alcoholic beverages."
“[A] term can be generic for a genus of goods or services if the relevant public…understands the term to refer to a key aspect of that genus….” In re Cordua Rests., 118 USPQ2d 1632, 1637 (Fed. Cir. 2016). Examining Attorney Marco Wright maintained that color is a "key aspect" of beer since beer is often categorized by its color: e.g., amber, blonde, brown, dunkel, golden, pale, and red. Applicant contended that "rose" was not one of the common beer colors, and that “[t]he term ‘rose’ merely describes one of several characteristics of certain beer beverages that have a pinkish color but it does not name the key aspect or … the central focus of such beverages."
The issue was whether relevant consumers "would understand the term ROSE primarily to refer to a subcategory of beer based mixed beverages, i.e., those that are rose or pink colored."
Applicant ABK asserted that the evidence relied up by the USPTO did not list "rose" as a category of beer but merely described the color of the beer. The Board pointed out, however, that "[a]s the Federal Circuit has stated, ... 'The test is not only whether the relevant public would itself use the term to describe the genus, but also whether the relevant public would understand the term to be generic.'"
The Board noted that applicant touts its beer as having a "natural rose color," and referred to its beer as "ABK ROSE Beer." Applicant's competitors and some retailers use this same terminology to refer to this type of beer.
The Board therefore found that "rose" is a generic adjective for a category or type of beer.
In sum, even if the relevant public does not currently use the term "rosé" or "rose" as often for beer as for wine, the evidence adduced by the Examining Attorney―including use of "rose" by Applicant, by its competitors, by retailers, by reviewers, and by members of the public―indicates that the relevant public would understand ROSE primarily to refer to a key aspect and a subcategory of beer based mixed beverages.
And so the Board affirmed the refusal under Sections 23(c) and 45 of the Trademark Act.