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“FAST” Double-Entendre

Posted by Thomas P. Howard | Nov 22, 2021 | 0 Comments

By James Juo.

Trademarks that create a double entendre or double meaning are not merely descriptive.[1] See., e.g., In re Tea and Sympathy Inc., 88 USPQ2d 1062, 1064 (TTAB 2008) (THE FARMACY not merely descriptive because it is a play on the “farm-fresh” characteristics of applicant's herbs and organic products used for medicinal purposes.); Colonial Stores, 157 USPQ at 385 (SUGAR & SPICE not merely descriptive for bakery products because it immediately calls to mind “sugar and spice and everything nice” from the well-known nursery rhyme); In re Del. Punch Co., 186 USPQ 63, 63-64 (TTAB 1975) (THE SOFT PUNCH for noncarbonated soft drink not merely descriptive because it projects a double entendre of a non-alcoholic drink as well as having a pleasing hit or soft impact); In re Priefert Mfg. Co. Inc., 222 USPQ 731, 733 (TTAB 1974) (HAY DOLLY not merely descriptive of self-loading trailers for hauling bales; “phonetically the term is equivalent to the expression ‘Hey Dolly,' giving the mark a commercial impression which transcends that which emerges as a result of legal analysis”).

“For trademark purposes, a ‘double entendre' is an expression that has a double connotation or significance as applied to the goods or services.” TMEP 1213.05(c) (emphasis in original). A mark that is a “double entendre” should not be refused registration as merely descriptive if one of its meanings is not merely descriptive in relation to the applied-for goods or services. Id.

In the case of In re L-Nutra, Inc., Serial No. 87635652 (TTAB Aug. 24, 2021), the applicant sought to register its FAST DRINK mark for “Nutritional meal replacement drinks adapted for medical use; herbal teas for medical treatments.” The examining attorney refused registration, finding it to be merely descriptive of a significant feature of the identified goods for use when a consumer abstains from food, instead consuming herbal teas or meal replacement drinks.

On appeal, the TTAB noted “the lack of evidence of the term FAST DRINK as a unitary expression referring to a drink that is consumed during, or in preparation for, a fast”; and was “unclear whether consumers would understand it as a merely descriptive term when applied to the identified goods.” But the applicant's marketing materials for “FAST DRINK” referred to the product as one that can be prepared quickly, or that can be “a quick snack or as an on-the-go meal replacement while they are fasting.”

Because we find FAST DRINK equally as likely to be perceived as indicating a drink that will be used while fasting, as a drink that can be made quickly, or as a drink that can be consumed as a quick snack or as an on-the-go meal replacement, FAST DRINK is, at most, suggestive of the identified goods. See In re The Place Inc., 76 USPQ2d 1467, 1470 (TTAB 2005) (defining a “double entendre” as an “ambiguity of meaning arising from language that lends itself to more than one interpretation”). As in The Place, multiple meanings of FAST DRINK are readily apparent from the mark itself without reference to other indicia. See also In re Calphalon Corp., 122 USPQ2d 1153, 1162 (TTAB 2017) (“The multiple interpretations that mark an expression a ‘double entendre' must be associations that the public would make fairly readily, and must be readily apparent from the mark itself.”) (emphasis in original).

Thus, the TTAB reversed the refusal to register the FAST DRINK mark under Trademark Act Section 2(e)(1).

The trademark attorneys at Thomas P. Howard, LLC are experienced in evaluating likelihood of confusion both in the prosecution of trademark applications before the USPTO, as well as in enforcing trademarks or defending against infringement claims in litigation nationwide including in Colorado.

[1] Whether a trademark should be refused registration as being merely descriptive depends on whether the mark immediately conveys information concerning a significant quality, characteristic, function, ingredient, attribute or feature of the product or service with which it is used, or intended to be used. In re Eng'g Sys. Corp., 2 USPQ2d 1075, 1076 (TTAB 1986); In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979). To find a mark merely descriptive, it is not necessary that the mark describe each feature of the goods or services, only that it describe a single, significant ingredient, quality, characteristic, function, feature, purpose or use of the goods or services. In re Gyulay, 820 F.2d 1216, 3 USPQ2d 1009, 1010 (Fed. Cir. 1987).

Where a mark consists of multiple words, the mere combination of descriptive words does not necessarily create a nondescriptive word or phrase. In re Associated Theater Clubs Co., 9 USPQ2d 1660, 1662 (TTAB 1988). If each component retains its merely descriptive significance in relation to the goods or services, the combination results in a composite that is itself merely descriptive. In re Oppedahl & Larson LLP, 373 F.3d 1171, 71 USPQ2d 1370, 1371 (Fed. Cir. 2004) However, a mark comprising a combination of merely descriptive components is registrable if the combination of terms creates a unitary mark with a unique, nondescriptive meaning, or if the composite has a bizarre or incongruous meaning as applied to the goods or services. See In re Colonial Stores Inc., 394 F.2d 549, 157 USPQ 382 (CCPA 1968); In re Shutts, 217 USPQ 363 (TTAB 1983); Trademark Manual of Examining Procedure (TMEP) § 1209.03(d) (July 2021).

On the other hand, a mark is suggestive if, when the goods or services are encountered under the mark, a multi-stage reasoning process, or the utilization of imagination, thought or perception, is required in order to determine what attributes of the goods or services the mark indicates. See, e.g., In re Abcor Dev. Corp., 588 F.2d 811, 200 USPQ 215, 218 (CCPA 1978). There is a thin line between a suggestive mark and a merely descriptive one, frequently involving subjective judgment. See, e.g., In re Atavio, 25 USPQ2d 1361, 1362 (TTAB 1992); In re TMS Corp. of the Ams., 200 USPQ 57, 58 (TTAB 1978). The distinction is often made on an intuitive basis rather than as a result of precisely logical analysis susceptible of articulation. See In re George Weston Ltd., 228 USPQ 57, 58 (TTAB 1985). The examining attorney bears the burden of showing that a mark is merely descriptive of the identified goods or services. See In re Merrill, Lynch, Pierce, Fenner, and Smith Inc., 828 F.2d 1567, 4 USPQ2d 1141, 1143 (Fed. Cir. 1987).

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Thomas P. Howard

Thomas Howard is an experienced trial lawyer that handles intellectual property litigation nationwide, including copyright, trademark, trade secret and patent litigation, as well as complex civil litigation, including breach of contract, interference with contract, breach of fiduciary duty, conspiracy, fraud and fraudulent transfer of assets.


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