IP Law Daily, TRADEMARK—TTAB: N2WINES not merely descriptive of wine sold in kegs, (Apr 17, 2014)

By Mark Engstrom, J.D.

The standard character mark N2WINES was not merely descriptive of “wine sold in kegs,” the Trademark Trial and Appeal Board has ruled (In re N2Wines LLC, April 15, 2014, Gorowitz, F.). Because the N2 portion of N2WINES was a double entendre—it was a symbol for nitrogen and it also meant “into”—the TTAB reversed a trademark examining attorney’s refusal to register N2WINES.

The examining attorney refused to register the mark because N2, the symbol for hydrogen, was descriptive of the applicant’s goods—wine sold in kegs. According to the examining attorney, nitrogen was an inert gas that was used in connection with wine tapping systems.

Although the applicant’s website supported that assertion (“N2wine is pushed through a tap system similar to draft beer, by an inert nitrogen (N2) based gas blend”) and Internet articles and advertisements referred to wine tapping systems that used nitrogen to preserve and dispense wine, the applicant’s mark did not include the word “nitrogen.”

The applicant and the examining attorney agreed that N2 was a recognized symbol for nitrogen, but the court considered the possibility that the N2 symbol assumed a different meaning that would be perceived by consumers in a manner that was not descriptive of the applicant’s goods. In that regard, the Board concluded that the record supported the applicant’s assertion that N2, when used in N2WINES, was a double entendre that meant “into wines.”

The applicant submitted evidence of trademark registrations and evidence that showed the use of trademarks and domain names in contexts in which N2 meant “into.” The Board noted that “into” was defined as “involved with or interested in.” Therefore, N2WINES was a double entendre that meant “into wines.”

According to the Board, the unitary phrase “into wines” implied that consumers of the applicant’s goods were interested in wine; it did not immediately convey an idea of any ingredient, quality, characteristic, feature, function, purpose, or use of the applicant’s goods. Because the unitary phrase N2WINES created a double entendre, it was not merely descriptive of the applicant’s goods.

The case is Serial No. 85680969.

Attorneys: Barry Strike (Strike & Techel) for N2Wines LLC. Robert Clark, Trademark Examining Attorney.

Companies: N2Wines LLC

Cases: Trademark USPTO