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A NEW KIND OF SODA’s Failure to Function as a Trademark

Posted by James Juo | Sep 27, 2023 | 0 Comments

Slogans, phrases, and other terms that are considered to be merely informational in nature are generally not registrable. See In re Eagle Crest Inc., 96 USPQ2d 1227, 1232 (TTAB 2010) (“ONCE A MARINE, ALWAYS A MARINE is an old and familiar Marine expression, and as such it is the type of expression that should remain free for all to use.”). See also In re Volvo Cars of N. Am., Inc., 46 USPQ2d 1455, 1460-61 (TTAB 1998) (affirming refusal to register “Drive Safely” for automobiles because it would be perceived as an everyday, commonplace safety admonition).

“The critical inquiry in determining whether a designation functions as a mark is how the designation would be perceived by the relevant public.” Eagle Crest, 96 USPQ2d at 1229. This inquiry looks at “the specimens and other evidence of record showing how the designation is actually used in the marketplace.” Id.


In an appeal of a refusal to register A NEW KIND OF SODA on the Supplemental Register for “Non-alcoholic sparkling fruit juice beverages; non-alcoholic water-based beverages,” the TTAB affirmed that the slogan failed to function as a trademark. In re Olipop Inc., Ser. No. 90381174 (TTAB Sept. 21, 2023).

The TTAB found that the phrase, “a new kind of soda” was “commonly used in the beverage industry to identify sodas that differ from previous types or ‘generations' of soda products.” For example, other sodas such as Wave, Maine Root, Shrub, Booch Pop, No-Cal, GINSENG UP, Holy Cross, and even Dr Pepper [in 1904] also have been described as “a new kind of soda.”

Because consumers are accustomed to seeing “a new kind of soda” commonly used in beverage advertising—much less the phrase “a new kind of ___” used in advertising in general—they would not perceive it as a mark identifying the source of Applicant's goods but rather as merely conveying an informational message. Eagle Crest, 96 USPQ2d at 1229.

The TTAB concluded that “consumers likely will view OLIPOP soda as one soda in a long line of ‘new' sodas that have evolved to suit changing consumer tastes.”

Thus, even though variations of other “NEW KIND OF” marks had been registered by third parties for other goods and services in other contexts, the refusal to register the proposed A NEW KIND OF SODA mark for failing to function as a trademark was affirmed.

Thomas P. Howard, LLC is experienced in trademarks nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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