Last month, the US Trademark Trial and Appeal Board (TTAB) found that the mark BIG SIX was generic for wine and upheld the Examining Attorney’s refusal to register the mark as a result. Plata Wine Partners filed an intent-to-use application to register BIG SIX for wines in January 2017. The Examining Attorney initially refused registration under Section 2(e)(1) on the ground that BIG SIX was a term of art in the wine industry, and thus descriptive of wine. The Examining Attorney also found that BIG SIX was generic, and therefore incapable of functioning as a source identifier, for wine. In response, Applicant submitted an allegation of use and amended its application to the Supplemental Register—the trademark register designed for descriptive marks that have the potential to be source identifiers. The Examining Attorney then refused registration under Section 23(c) of the Lanham Act, on the ground that BIG SIX is generic for wine and, alternatively, that it is descriptive. Applicant appealed.
The TTAB initially addressed an evidentiary objection and refused to consider evidence of Applicant’s sales and revenue information and an affidavit from the applicant’s attorney. Neither document was made of record during the examination period. Because the applicant failed to file a request with the TTAB to suspend the appeal and remand the application for further examination and consideration of these materials, the Board did not consider them in its analysis.
The TTAB first considered whether BIG SIX is generic for wine and found that the USPTO met its burden to provide “clear evidence” that BIG SIX is “the common descriptive name of a class of goods or services.” Using the two-part Marvin Ginn test to determine whether a mark is generic, the TTAB concluded that (1) wine was the genus of the goods and issue and (2) the relevant public understands BIG SIX to primarily refer to that genus. The TTAB also determined that the “relevant public” was the public at large, i.e. “ordinary consumers who purchase and imbibe wine or who purchase wine for others.”
The TTAB was persuaded by the Examining Attorney’s argument that BIG SIX is a term of art in the wine industry, referring to the six common grape varietals that comprise approximately 80% of the world’s wine—Riesling, Sauvignon Blanc, Chardonnay, Pinot Noir, Merlot, and Cabernet Sauvignon. The Examining Attorney demonstrated the relevant public’s understanding from numerous Internet articles, wine websites, and blogs using “big six” to refer to these grapes. In response, the applicant argued that BIG SIX refers to the grape varietals, not the wine itself. The TTAB was not persuaded, as the evidence showed that BIG SIX was used to identify both the types of grapes used to make wine, as well as the types of wines themselves. Moreover, the generic name of an ingredient (rather than the good itself) is still incapable of identifying and distinguishing its source (i.e., serving as a trademark).
It was also irrelevant that BIG SIX does not appear in the dictionary, as dictionary use is not controlling on the question of registrability “when the word or term has a well understood and recognized meaning.” The TTAB also discounted Applicant’s evidence (printouts of Google search results and consumer reviews) because the search results were too truncated to provide the context surrounding the use of BIG SIX and only one review used BIG SIX as a source indicator for Applicant’s wine.
Because the evidence of record “clearly indicate[d]” that the public at large understands BIG SIX to refer to wines or wine grapes, the TTAB concluded that BIG SIX is generic for—and, for the same reasons, descriptive of—wine.
The case is In re Plata Wine Partners, LLC, Serial No. 87292254, 2019 WL 4073197 (TTAB Aug. 22, 2019).