N2Wines LLC

Trademark Trial and Appeal Board

Apr 15, 2014

No. 85680969 (T.T.A.B. Apr. 15, 2014)

THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Mailed:
April 15, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
_____

Trademark Trial and Appeal Board
_____

In re N2Wines LLC
_____

Serial No. 85680969
_____

Barry Strike of Strike & Techel for N2Wines LLC.

Robert Clark, Trademark Examining Attorney, Law Office 101 (Ronald R. Sussman,
Managing Attorney).
_____

Before Taylor, Wellington, and Gorowitz, Administrative Trademark Judges.

Opinion by Gorowitz, Administrative Trademark Judge:
N2Wines LLC (applicant) filed an application to register the mark N2WINES
in standard character format for “wine sold in kegs” in Class 33.1 Registration was
refused pursuant to Section 2(e)(1) of the Trademark Act,15 U.S.C. §1052(e)(1), on
the ground that applicant’s mark is merely descriptive. The examining attorney

1 Application Serial No. 85680969 filed July 18, 2012, pursuant to Section 1(a) of the
Trademark Act, based on use in commerce, alleging first use anywhere and first use in
commerce at least as early as January 1, 2011.

Serial No. 85680969

2

issued a final refusal of registration, to which applicant requested reconsideration.
This appeal follows the denial of the request.
A term is deemed to be merely descriptive of goods or services, within the
meaning of Section 2(e)(1) of the Trademark Act, if it forthwith conveys an
immediate idea of an ingredient, quality, characteristic, feature, function, purpose
or use of the goods or services. DuoProSS Meditech Corp. v. Inviro Medical Devices
Ltd., 695 F.3d 1247, 103 USPQ2d 1753, 1755 (Fed. Cir. 2012); In re Chamber of
Commerce of the U.S., 675 F.3d 1297, 102 USPQ2d 1217, 1219 (Fed. Cir. 2012); In
re Abcor Development Corp., 588 F.2d 811, 200 USPQ 215, 217-18 (CCPA 1978).
Whether a term is merely descriptive is determined not in the abstract, but in
relation to the goods or services for which registration is sought, the context in
which it is being used on or in connection with the goods or services, and the
possible significance that the term would have to the average purchaser of the goods
or services because of the manner of its use; that a term may have other meanings
in different contexts is not controlling. The Chamber of Commerce of the U.S.,
supra, citing In re Bayer Aktiengesellschaft, 488 F.3d 960, 963-64, 82 USPQ2d 1828,
1831 (Fed. Cir. 2007); In re Bright-Crest, Ltd., 204 USPQ 591, 593 (TTAB 1979).
A mark is suggestive if, when the goods or services are encountered under
the mark, a multistage 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, 200 USPQ at 218 and In re
Mayer-Beaton Corp., 223 USPQ 1347, 1349 (TTAB 1984).
Serial No. 85680969

3

Applicant’s goods consist of wine that is sold in kegs. Since “wine” is the
generic term for these goods, we first need to determine whether the term “N2,”
which is the symbol for nitrogen,2 is descriptive of a feature of applicant’s goods.
The examining attorney submitted evidence to establish that nitrogen is an
inert gas used in connection with wine tapping systems. The evidence includes a
page from applicant’s website entitled “Rethink Your Wine Bottle Habit,” which
states:
N2wine or ‘wine on tap’ is a simple and practical way of
dispensing wine from a faucet in a restaurant or wine bar,
rather than pouring from a bottle. N2wine is packaged in
bulk format, usually in reusable stainless steel barrels
and is an efficient way to serve wine by the glass or carafe
in a high volume food service setting. In addition to the
time and cost efficiencies of buying and serving wine in
bulk format, N2wine is never exposed to air, and therefore
will not oxidize or deteriorate in flavor the way that wines
poured from a bottle are prone to do.
N2wine is pushed through a tap system similar to draft
beer, by an inert nitrogen (N2) based gas blend. This
practical method for serving wine is considered by many
to be the best way to serve wine-by-the-glass in
rastaurants [sic] and wine bars.
Wines packaged in stainless steel barrels and dispensed
by inert gas pressure have many advantages over
traditional bottled wines.
• Fresh wine from the time the barrel is tapped to
the very last glass served – inert gas protects the
wine in the barrel from oxidation and spoilages.

2 Applicant and the examining attorney agree that N2 is the symbol for “nitrogen.” Appeal
Brief, p. 7, 12 TTABVue, 8 and Examining Attorney’s Brief, p. 4, 14 TTABVue, 5.
Serial No. 85680969

4

• By eliminating the costs of glass, labels, corks and
spoilage, savings can be significant for the
restaurant operator, as well as the clientelle [sic].
• The barrels are reusable and help reduce
environmental impact.
www.n2wines.com. Office action dated February 28, 2013. The examining attorney
also submitted internet articles and advertisements which refer to other wine
tapping systems that use nitrogen to preserve and dispense wine. The following are
excerpts from the articles and advertisements that relate to the use of nitrogen:3
• By far and away the best way to preserve wine … is
a commercial style nitrogen wine tap system …
Disposable nitrogen systems to put your wine on
tap are wonderful www.wineeducation.com –
Office action dated November 9, 2012.
• Wineplease is a device for dispensing wine by the
glass. It uses a nitrogen system for saving the
organolepic properties of both red and white wines
for up to 4 weeks. www.wine-please.com - Denial of
Request for Reconsideration dated August 30, 2013.
• A wine keg will use nitrogen gas to dispense wine.
Tanks of nitrogen gas can be found at any store
that sells compressed gas. www.winemaking.com -
Denial of Request for Reconsideration dated August
30, 2013.
• NitroTap Single Bottle Wine Service &
Preservation System - Instant wine service! Keep
your favorite bottle on tap at all times, sealed fresh
by the inert nitrogen gas system.

3 The examining attorney also submitted an article from WineWisdom entitled “Wines by
the glass –keeping them fresh,” which first appeared in Drinks Magazine in 2008. The
prices indicated in this article are in British pounds. There is no evidence that the article is
geared towards customers in the United States. Moreover, the only reference to “nitrogen”
is a quote by Peter Godden, group manager of the Australian Wine Research Institute, who
recommends evacuating the air and replacing it with pure nitrogen to slow down oxidation.
Serial No. 85680969

5

www.wineenthusiast.com - Denial of Request for
Reconsideration dated August 30, 2013.
Based on the above-mentioned evidence, it is obvious that nitrogen has some
significance with respect to wine sold in kegs since nitrogen gas may be used for
tapping and preserving wine. However, applicant’s mark does not include the word
“nitrogen.” While applicant and the examining attorney are seemingly in
agreement that N2 is a recognized symbol for nitrogen (see footnote 2), we further
consider the possibility that this symbol takes on a different meaning and will be
perceived by consumers in a manner that is not descriptive of the goods. In this
regard, we find that the record supports applicant’s assertion that “N2 when used in
N2WINES is a double entendre meaning ‘into wines’.” Appeal Brief, p. 10, 12
TTABVue, 11.
“A ‘double entendre’ is a word or expression capable of more than one
interpretation. For trademark purposes, a ‘double entendre’ is an expression that
has a double connotation or significance as applied to the goods or services. The
mark that comprises the ‘double entendre’ will not be refused registration as merely
descriptive if one of its meanings is not merely descriptive in relation to the goods or
services.” TMEP § 1213.05(c) (Oct. 2013). Examples of marks that the Court of
Appeals for the Federal Circuit, our primary reviewing court, its predecessor, the
Court of Customs and Patent Appeals, and the Board have found to be registrable
double entendres are: SUGAR AND SPICE for bakery products (In re Colonial
Stores Incorporated, 394 F2d 549, 157 USPQ 382 (CCPA 1968)); SHEER
ELEGANCE for pantyhose (In re Symbra’ette, 189 USPQ 448 (TTAB 1975));
Serial No. 85680969

6

SHEER PERFECTION for makeup for legs (In re Conti, 220 USPQ 745, 746
(TTAB 1983)); FAST'N EASY for pre-cooked meats (In re Geo. A. Hormel & Co.,
218 USPQ 286 (TTAB 1983)); and HAY DOLLY-for self-loading trailers for hauling
bales (In re Priefert Mfg. Co., 222 USPQ 731 (TTAB 1984)).
Applicant has submitted evidence of both use of domain names and marks,
and registrations of marks in which the term N2 means “into,” examples of which
include:
• Dance N2 Shape – offers the “best dance-based
fitness for women – www.dancen2shape.com;
• N2 Pottery – “are you N2it? – pottery classes –
www.n2pottery.com;
• N2 The Blue Diving Adventures - scuba diving
tours of St. Croix - www.n2theblue.com; and
• N2 Learning – craft processes that map the
transformation of organizations to future-focused
learning communities operating at their most
creative and productive best - www.n2learning.org’
• N2 Eyes – N2 Eyes Comprehensive Optometry –
www.n2eyes.com;
• N2 Graphics – “N2 Graphics is INTO Graphics” –
www.n2graphics-pasadena.com; and
• N2sleep – “The trusted resource for everything
sleep.” – www.n2sleep.com;
***************************
• Reg. No. 4204981 for the mark N2IT for, inter alia,
containers manufacture and distribution of
containers;
• Reg. No. 4134885 for the mark N2WIN for
watches; necklaces; jewelry; and
Serial No. 85680969

7

• Reg. No. 4030879 for the mark N2TOUCH for
massage therapy services.
Request for Reconsideration dated August 27, 2013.
“Into” is defined as “involved with or interested in .”4 As such, N2WINES is a double entendre meaning “into
wines.” The unitary phrase “into wines” implies that consumers of applicant’s goods
are interested in wine. It does not immediately convey an idea of any ingredient,
quality, characteristic, feature, function, purpose or use of the goods, and thus is not
merely descriptive of applicant’s goods. Accordingly, we find that the unitary
phrase, N2WINES, creates a double entendre and thus is not merely descriptive, as
defined by Section 2(e)(1) of the Trademark Act.
Decision: The refusal to register is reversed.

4 We take judicial notice of the definition of “into” from Merriam-Webster Online
Dictionary, www.merriam-webster.com/dictionary/into; © 2014 Merriam-Webster,
Incorporated.
The Board may take judicial notice of dictionary definitions, Univ. of Notre Dame du Lac v.
J.C. Gourmet Food Imp. Co., 213 USPQ 594 (TTAB 1982), aff'd, 703 F.2d 1372, 217 USPQ
505 (Fed. Cir. 1983), including online dictionaries that exist in printed format or have
regular fixed editions. In re Red Bull GmbH, 78 USPQ2d 1375, 1377 (TTAB 2006).