IP Law Daily, TRADEMARK—TTAB: Board offers no relief for ‘merely descriptive’ mark ‘The Hangover Shop’, (Jun 17, 2024)

By Steven Melendez

The TTAB found the proposed trademark simply describes an online store offering painkillers, hydrating beverages, and snacks for hangover sufferers.

The Trademark Trial and Appeal Board (TTAB) affirmed the denial of trademark registration for "The Hangover Shop" for an online store offering various hangover remedies on the ground that the mark was merely descriptive of the applicant’s online store featuring hangover treatments and other related products (In re The Vita Coco Co., Inc., No. 97081204 (TTAB June 7, 2024)).

The Vita Coco Company, which sells coconut water, had sought to register the mark for its online store, where it sells its hydrating beverage, ibuprofen, frozen pizza, and other sweet and salty snacks. But an examining attorney had found that the name was "merely descriptive of the services identified" in the application.

Vita Coco appealed, but the TTAB agreed that the mark simply describes what the online store provides. Products in the marketplace are regularly advertised as helping to treat or prevent hangovers when people have too much to drink, and Vita Coco "promotes its online retailstore services as featuring such products," according to the ruling.

"We thus find that the word HANGOVER immediately informs consumers that Applicant’s online retail store services feature products, namely, headache treatment preparations, food and beverages, intended to alleviate a hangover," according to the TTAB ruling.

In claiming the mark is not purely descriptive, Vita Coco argued that it doesn't sell alcohol, and therefore its store does not "cause or promote hangovers." But the TTAB found that the store didn't have to be literally selling hangovers for the name to be merely descriptive of its services.

"The record amply supports that the word HANGOVER is merely descriptive of Applicant’s online retail services featuring products promoted as hangover remedies," according to the ruling.

Combining the three words in the name "The Hangover Shop" also didn't go far enough to create a "new and unique commercial impression" eligible for trademark protection, the TTAB found. Vita Coco had argued that most hangover-related products used descriptions like "hangover cure" or "hangover remedy," while its store simply used the term "hangover." The mark was incongruous, Vita Coco argued, since “it is abundantly clear that consumers do not shop for a hangover.”

But the TTAB found that consumers would "immediately understand" that the shop is focused on selling hangover remedies, not selling hangovers. "That is, when the proposed mark THE HANGOVER SHOP is viewed in the context of Applicant’s specific online retail store services, the word 'relief,' 'remedy' or 'cure' would be readily understood," according to the ruling.

Vita Coco had also argued that the examining attorney was forced to turn to outside materials, like its press release, to fully determine what "services might be offered under the mark because this could not be accomplished from looking at the mark alone." But the TTAB ruled that the mark should be considered in its commercial context, rather than simply considering whether someone could guess what services are offered simply from seeing the mark.

The Case is No. 97081204.

Judge: English, C.

Attorneys: Glenn Schroeder (Schroeder Law PC) for The Vita Coco Co., Inc. Eddie Nolasco Arias for the USPTO.

Companies: The Vita Coco Co., Inc.

Cases: Trademark USPTO